Filed: May 26, 1993
Latest Update: Feb. 21, 2020
Summary: 2For example, FOIA does not require production of classified, national defense and foreign policy documents, 5 U.S.C. , 552(b)(1), trade secrets or other confidential commercial, information, 5 U.S.C. 552(b)(4), or law enforcement, investigatory files, 5 U.S.C. 552(b)(7). Special Activity Requests.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2234
SHERRY ANN SULLIVAN,
Plaintiff, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Stahl, Circuit Judges.
James H. Lesar, with whom David L. Sobel and Mark Zaid were
on brief, for appellant.
Robert M. Loeb, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Stuart M. Gerson, Assistant
Attorney General, Richard S. Cohen, United States Attorney, and
Leonard Schaitman, Attorney, Civil Division, were on brief, for
appellee.
May 26, 1993
SELYA, Circuit Judge. Invoking the Freedom of
SELYA, Circuit Judge.
Information Act (FOIA), 5 U.S.C. 552 (1988), plaintiff-
appellant Sherry Ann Sullivan requested information from nine
federal agencies. Her curiosity unslaked by the meager responses
to her request, she sued. The federal district court ordered the
agencies to explain their search methodologies in greater detail
and reviewed some withheld documents in camera. Finding no FOIA
violations, the court granted summary judgment in favor of all
defendants.
Ms. Sullivan appeals with respect only to the Central
Intelligence Agency (CIA).1 She limits her argument to the
adequacy of the CIA's file search and the applicability of the
President John F. Kennedy Assassination Records Collection Act of
1992 (JFK Act), Pub. L. No. 102-526, 106 Stat. 3443 (1992).
After "indulging all reasonable inferences in [appellant's]
favor," Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990),
as the summary judgment standard necessitates, we affirm.
I. A POSSIBLE MISSION
Appellant's father, Geoffrey Sullivan, and his quondam
colleague, Alexander Rorke, were last seen on September 24, 1963,
leaving Cozemel, Mexico in a twin-engine Beechcraft airplane.
Though the pair filed a flight plan for Tegucigalpa, Honduras,
they never arrived. A search ensued, but neither the aircraft
nor its occupants were found.
1In view of this limitation, we omit any reference to the
other eight agencies in the pages that follow.
2
In later years, appellant grew determined to solve the
mystery of her father's disappearance. On the basis of
interviews and an inspection of declassified government
documents, appellant surmised that Rorke and her father were
engaged in a CIA-sponsored mission to drop propaganda (or perhaps
something more sinister) over Cuba. Despite appellant's
suspicions, the CIA steadfastly refused to acknowledge that it
employed either man at any time.
Undaunted, appellant requested that the CIA provide her
with documents about the missing men. The agency perused its
non-operational files, finding no data about Geoffrey Sullivan
and a few, apparently inconsequential, documents relating to
Rorke. When the agency balked at searching its operational
files, appellant instituted the instant action.
II. THE FOIA CLAIM
We begin by exploring the intersection between FOIA and
the CIA Information Act of 1984, 50 U.S.C. 431-432 (1988). We
then apply the statutory framework to the case at bar.
A. Statutory Structure.
In general, FOIA requires that upon due inquiry every
federal agency "shall make [requested] records promptly available
to any person." 5 U.S.C. 552(a)(3). This broad command is
hedged by nine exemptions. See 5 U.S.C. 552(b). Although
these exemptions cover much of what typically might be found in
3
CIA operational files,2 FOIA does not give the CIA carte blanche
to refrain from producing documents merely because it is an
intelligence agency. Consequently, the CIA had to divert trained
intelligence officers to search its entire file system in
response to FOIA requests, notwithstanding the relatively limited
number of non-exempt documents likely to be culled. See S. Rep.
No. 305, 98th Cong., 1st Sess. 6-7 (1983). To curb the
inefficiencies inherent in applying standard FOIA requirements to
the arcane realm of the CIA, Congress, acting pursuant to its
reserved power to insert additional FOIA exemptions in other
statutory enactments, see 5 U.S.C. 552(b)(3); see also CIA v.
Sims, 471 U.S. 159, 167-68 (1985) (acknowledging that the CIA
Information Act creates FOIA exemptions); Maynard v. CIA, 986
F.2d 547, 555 (1st Cir. 1993) (similar), passed the CIA
Information Act.
The Information Act addressed the problem by excusing
the CIA from searching its operational files in response to most
FOIA requests. Operational files, i.e., files that memorialize
the conduct and means of the government's foreign intelligence
and counterintelligence efforts, see 50 U.S.C. 431(b), are the
most sensitive of the CIA's records and, thus, the most likely to
need an extra measure of protection. Recognizing, however, that
operational files can be highly informative, Congress carefully
2For example, FOIA does not require production of classified
national defense and foreign policy documents, 5 U.S.C.
552(b)(1), trade secrets or other confidential commercial
information, 5 U.S.C. 552(b)(4), or law enforcement
investigatory files, 5 U.S.C. 552(b)(7).
4
carved out three areas in which requestors, notwithstanding the
statutory bar, might nonetheless receive materials.
Specifically, the CIA must search such files and produce relevant
information if a document request is
(1) [from] United States citizens . . .
who have requested information on themselves
. . . ; [or]
(2) [regarding] any special activity the
existence of which is not exempt from
disclosure under [FOIA]; [or]
(3) the specific subject matter of an
investigation by the intelligence committees
of the Congress, the Intelligence Oversight
Board, the Department of Justice, the Office
of General Counsel of the [CIA], the Office
of Inspector General of the [CIA], or the
Office of the Director of Central
Intelligence for any impropriety, or
violation of law, Executive order, or
Presidential directive, in the conduct of any
intelligence activity.
50 U.S.C. 431(c). In sum, then, the statutory exceptions are
for first-party requests, special activity requests, and requests
that focus on investigations of improprieties in intelligence-
gathering activities.
B. Applying the Exceptions.
Although appellant asserts that her information request
implicates each of the three exceptions quoted above, we think
none of them apply in this case. We explain briefly.
1. First-Party Requests. Restricting this aspect of
1. First-Party Requests.
her appeal to the information she solicits about her father, Ms.
Sullivan asseverates that the CIA must search its operational
files for responsive documents because section 431(c)(1),
5
properly interpreted, requires the agency, on request, to produce
information about the requestor's next-of-kin. We disagree.
Appellant arrives at her rather curious reading of the
statute by a two-step pavane. She says, first, that the statute
is vague as to rights of next-of-kin; and second, that the
legislative history resolves the uncertainty in her favor. We
find neither step to be consistent with the rhythm of the
Information Act.
Section 431(c)(1) is anything but murky. The statute's
language limits the exclusion to "United States citizens . . .
who have requested information on themselves." 50 U.S.C.
431(c)(1). While appellant suggests that, in context, the word
"themselves" is ambiguous, we are confident that the word's
common meaning "those identical ones that are they," Webster's
Third New International Dictionary 2370 (1986) is not only
palpably plain but is also anathematic to appellant's rendition
of the exception. The lack of ambiguity entirely undermines Ms.
Sullivan's position. Courts will only look behind statutory
language in the rare case where a literal reading must be shunned
because it would produce an absurd outcome, see, e.g., Public
Citizen v. United States Dep't of Justice, 109 S. Ct. 2558, 2566
(1989) ("Where the literal reading of a statutory term would
compel an odd result, [courts] must search for other evidence of
congressional intent . . . .") (citation and internal quotation
marks omitted), or when the legislature has otherwise blown an
uncertain trumpet. See Morales v. Trans World Airlines, Inc.,
6
112 S. Ct. 2031, 2036 (1992); FMC Corp. v. Holliday,
111 S. Ct.
403, 407 (1990); see also United States v. Aversa,
984 F.2d 493,
499 n.8 (1st Cir. 1993) (en banc) (reiterating that where statute
is clear, further hermeneutics are unnecessary) (collecting
cases). Here, reading the statute literally produces a perfectly
plausible result and the clarity of the statutory command is
stunning. That ends the matter: if Congress had wished to
create a right for next-of-kin, it could and, we think, would
have done so explicitly.
The second step of appellant's section 431(c)(1) pavane
is equally bollixed. The legislative history of the Information
Act reinforces rather than weakens the unrelievedly narrow
construction of the first-party exception that the statutory
language portends. See, e.g., S. Rep. No. 305, at 17-18. While
some members of Congress apparently believed that the CIA would
treat next-of-kin requests "generously," id. at 18, such
generosity was obviously meant to be a matter of grace. The
Senate Report states unequivocally: "This legislation does not
give next-of-kin a right to request information about a deceased
person." Id. at 17. The predictions of individual senators to
the effect that an agency, once empowered, will act with greater
generosity than it is obliged to exhibit cannot serve to
overwhelm the letter of the law.
We have said enough. Neither the text of section
431(c)(1) nor its legislative history support a right of access
to CIA operational files for next-of-kin requestors. Hence,
7
appellant cannot wield the first-party exception as a wedge to
loosen the restrictions that safeguard CIA operational files.
2. Special Activity Requests. Appellant's next claim
2. Special Activity Requests.
is that the CIA must produce the information she seeks because
her request relates to a "special activity" within the purview of
50 U.S.C. 431(c)(2). In this instance, the statute's language
provides relatively scant guidance, other than to mandate that,
in addition to having a special activity linkage, the material
must not otherwise be exempt from disclosure under FOIA. See id.
The statute is silent in a critical respect; neither its text nor
its structure afford a meaningful insight into what
characteristics of a CIA activity make it "special." We turn,
therefore, to the legislative history. See, e.g., Greenwood
Trust Co. v. Massachusetts, 971 F.2d 818, 824 (1st Cir. 1992)
(discussing preferred approaches to statutory construction where
a statute's text leaves unanswered questions), cert. denied, 113
S. Ct. 974 (1993).
House and Senate reports make clear that Congress
designed the special activity exception to allow public access to
declassified information while still permitting the CIA to refuse
to confirm or deny the existence of documents relating to
classified covert operations. See H.R. Rep. No. 726, 98th Cong.,
2d Sess. 27 (1984); S. Rep. No. 305, at 24. To accommodate these
competing objectives, the special activity provision must be
construed in light of two basic concerns: specificity and
secrecy.
8
As to the specificity prong, a requestor must identify
a particular CIA activity in connection with his or her request.
The House report accompanying the Information Act tells us that
the term "special activity"
means any activity of the United States
Government, other than an activity intended
solely for obtaining necessary intelligence,
which is planned and executed so that the
role of the United States is not apparent or
acknowledged publicly, and functions in
support of any such activity, but not
including diplomatic activities.
H.R. Rep. No. 726, at 28. The Senate added content to this
explanation by furnishing examples. Thus, requests must relate
to "a specific covert action operation, such as the Bay of Pigs
invasion or the CIA's role in replacement of the Guatemala regime
in the 1950s . . . ." S. Rep. No. 305, at 24-25. By contrast, a
request is insufficiently specific "if it refers to a broad
category or type of covert action operations." Id. at 25. As an
example of an inadequately particularized request, the Senate
report mentions one that is "predicated on declassification of
the existence of CIA covert efforts to counter Soviet influence
in Western Europe during the 1950s . . . ." Id.
Appellant argues on appeal that the information she
seeks is part and parcel of a particular "special activity": the
CIA's unremitting efforts to overthrow Cuban President Fidel
Castro. Although the parties dispute whether appellant espoused
this theory before the district court, we need not resolve the
question of waiver because it is apparent that, even in its
present incarnation, appellant's theory is unavailing: it rests
9
on CIA activity that is too expansively described to slip within
the integument of section 431(c)(2).
In an effort to prove the contrary, appellant seizes on
an example limned in the Senate report and proclaims that the
coup deposing Guatemalan President Arbenz in 1954 is a fair
congener to the special activity she has described. We think
not. While equating the two might produce a certain superficial
symmetry, doing so flies in the teeth of history. There is an
essential difference in the magnitude and scope of the anti-
Arbenz and anti-Castro campaigns. President Arbenz fled his
country at the conclusion of a CIA-inspired operation that lasted
only a few months and involved only a handful of agents. See
Jeremiah O'Leary, Tricks of the Coup Trade, Wash. Times, Dec. 19,
1989, at F3; see generally Julius Pratt, A History of United
States Foreign Policy 532-33 (1965). Like the Bay of Pigs, the
overthrow of the Guatemalan government was a discrete operation
with a beginning, an end, and a circumscribed middle. In
contrast, the CIA's campaign against Castro has been ongoing for
decades. By all accounts, it has involved widespread efforts and
hordes of people. Indeed, the CIA's role in respect to Castro's
Cuba is more properly analogous to CIA operations against Soviet
influence in Western Europe during the 1950s, a course of conduct
which the Senate specifically indicated was too sweeping to
trigger the special activity exception, than to the coup in
Guatemala.
We turn now to the second prong: secrecy. The special
10
activity provision also requires that the requested material not
be exempt from disclosure under FOIA. At the very least, this
means that the data must be either unclassified or declassified.
See 5 U.S.C. 552(b)(1)(B) (establishing FOIA exemption for
classified materials). Declassification occurs only when "an
authorized Executive Branch official has officially and publicly
acknowledged the existence . . . of a specific special activity."
S. Rep. No. 305, at 24; see also Hunt v. CIA, 981 F.2d 1116, 1121
(9th Cir. 1992) (recognizing that the CIA need not release any
information on special activities that remain classified).
Appellant's request fails this prong of the section 431(c)(2)
test because the activity about which she inquires is not
generally declassified. The mere fact that the CIA acknowledges
involvement in an incident or, more broadly, in a particular
region of the world, does not justify the release of documents
which touch, however distantly, on that incident or region.
Of course, certain aspects of the CIA's efforts to
destabilize the Castro regime are in the public domain (the Bay
of Pigs, for one). Nonetheless appellant's initial FOIA request
apparently did not seek information related to the subjects'
participation in any specific (declassified) operations,3 but
simply inquired about the two men whose alleged role in CIA
affairs has never been acknowledged by either the CIA or any
3We are frank to acknowledge that the appellate record is
not entirely pellucid in this regard. Appellant, however, must
bear the onus of such shortcomings in the record. See
Massachusetts v. Secretary of Agric., 984 F.2d 514, 523 n.7 (1st
Cir. 1993).
11
Executive Branch official and the circumstances of their
disappearance. In this case, such a level of generality is
necessarily fatal. With respect to CIA operations, "it is one
thing . . . to speculate or guess that a thing may be so . . . ;
it is quite another thing for one in a position to know of it
officially to say that it is so." Fitzgibbon v. CIA, 911 F.2d
755, 765 (D.C. Cir. 1990) (quoting Alfred A. Knopf, Inc. v.
Colby, 509 F.2d 1362, 1370 (4th Cir.), cert. denied,
421 U.S. 992
(1975)). That some operations against Cuba have been
declassified is insufficient to throw open all CIA files
regarding Cuba.
At bottom, the interleaved fact that appellant did not
initially identify (i) a particular operation against the Castro
regime that (ii) is declassified and in which she believed her
father participated, defeats her effort to invoke section
431(c)(2).
3. Investigatory Requests. Finally, appellant hawks
3. Investigatory Requests.
the notion that because a Senate Select Committee (the Church
Committee) inquired into certain covert operations against Cuba
mounted by the CIA and other (putatively independent) anti-Castro
groups,4 the information she requests comprises "the specific
subject matter of an investigation by [an] intelligence
committee[] of the Congress . . . for any impropriety, or
4The Church Committee eventually filed a compendious report
of its investigation. See The Investigation of the Assassination
of President John F. Kennedy: Performance of the Intelligence
Agencies, S. Rep. No. 755, 94th Cong., 2d Sess. (1976).
12
violation of law . . . in the conduct of an intelligence
activity." 50 U.S.C. 431(c)(3). In our view, appellant's FOIA
request does not fall within the exception's province.
As the statute's language and legislative history make
clear, see id.; see also H.R. Rep. No. 726, at 28-31, a
congressional investigation that touches on CIA conduct in a
particular incident or region, standing alone, is not sufficient
to warrant the release of all CIA documents anent that incident
or region. Instead, the congressional investigation and the
documents sought must specifically relate to CIA wrongdoing, that
is, some "impropriety" or "violation of law" in the conduct of
the designated intelligence activity. 50 U.S.C. 431(c)(3).
The primary mission of the Church Committee, as appellant admits,
was to examine the relationship, if any, between the
assassination of President Kennedy, on the one hand, and
American-sponsored operations against Cuba, on the second hand.
In the course of its work, the Committee considered American
operations against Castro and, inevitably, their legality. Seen
from that perspective, the Committee's mission does not fit
within the contours of section 431(c)(3) for two reasons. First,
the Committee's inquiry was not a direct investigation into CIA
wrongdoing. Second, appellant's request for information about
her father's disappearance bears no claimed or readily
discernible relationship to the investigation's purposes. This
latter obstacle is insurmountable: a pivotal requirement of
section 431(c)(3) is that, to be extractable, the information
13
requested must concern the specific subject matter of the
official investigation. Thus, although there were instances in
which the Committee searched for agency misconduct, that
happenstance does not allow appellant to catapult herself over
the statutory parapet. It is simply not enough that information
which bore in some remote way on the request surfaced in the
course of an official investigation. See H.R. Rep. No. 726, at
30-31.
Appellant also points hopefully, albeit without
developed argumentation, to the work of the House Select
Committee on Assassinations (HSCA). This committee probed
whether the CIA might have played a role in the death of
President Kennedy, see H.R. Rep. No. 1828, 95th Cong., 2d Sess.
(1979), concluding that it did not. Id. at 3. Assuming arguendo
that the HSCA investigation centered on potential CIA wrongdoing,
its work still cannot serve as a vehicle for bringing appellant's
request within the statutory exception. Appellant is not seeking
information on the CIA's role in the Kennedy assassination and
has not alleged that either her father or Rorke was directly
involved in any such machinations. Hence, because her request
does not overlap the "specific subject matter of [the]
investigation," 50 U.S.C. 431(c)(3), she cannot use the HSCA
report as a means to escape the strictures of the Information
Act.
We rule, therefore, that neither the Church Committee's
investigation nor HSCA's probe is sufficiently sturdy a bootstrap
14
to lift appellant's FOIA request over the hurdles erected by the
congressional investigation exception to the Information Act.5
III. THE JFK ACT CLAIM
After the district court entered summary judgment, but
before appellant briefed this appeal, Congress passed the JFK
Act, Pub. L. No. 102-526, 106 Stat. 3443 (1992). The Act
requires that records related to President Kennedy's
assassination be transferred to the National Archives where they
are to be made publicly available, subject to certain stipulated
conditions. Id. 5. The Act constructs a process distinct
from FOIA by which the public can search those documents in an
almost unfettered fashion. See id. 4. In a peroration that
sheds considerably more heat than light, appellant insinuates
that her father's disappearance might be tied in some undefined
way to President Kennedy's assassination and implores that we
order the district court to review her information request under
the new law's disclosure provisions. Her argument is policy-
driven; in her view, federal courts should go to great lengths to
order documents produced under the JFK Act because the statute
instructs agencies to "give priority to . . . the identification,
review, and transmission, under the standards of postponement set
forth in this Act, of assassination records that on the date of
enactment of this Act are the subject of litigation under
5Having disposed of appellant's initiative on this ground,
we need not consider whether either the Church Committee or HSCA
was an "intelligence committee[]" within the meaning of section
431(c)(3).
15
[FOIA]." See id. 5(c)(2)(G).
We are unconvinced. The JFK Act, like FOIA, assigns
primary responsibility for assessing information requests to the
Executive Branch. Judicial review is merely a safeguard against
agency action that proves arbitrary, capricious, or contrary to
law, not an option of first resort. We can discern no valid
reason to throw caution to the winds, disrupt the orderly
workings of the statutory scheme, and instruct the district court
to dive headlong into uncharted waters. Doing so would be
premature from virtually every standpoint: the compilation of
records required by the JFK Act has not been completed, appellant
has not invoked the administrative processes afforded under the
legislation, no agency action has been taken thereunder, and, a
fortiori, there is no administrative record for a court to mull.
See Assassination Archives & Research Ctr. v. U.S. Dep't of
Justice, F. Supp. , n.3 (D.D.C. 1993) [No. 92-2193;
slip op. at 12 n.3] (finding similar JFK Act claim unripe).
We need go no further. Appellant has boldly grafted a
neoteric JFK Act claim that belongs before the Archivist of the
United States onto her FOIA appeal. Since there is no agency
action for the district court to review, we decline to
participate in so radical an experiment. See JFK Act, 11(c)
(providing for judicial review of "final actions" taken by
agencies).
IV. CONCLUSION
Although we sympathize with appellant's desire to learn
16
the details of her father's fate, she, like all other litigants,
must abide by the rules. Congress crafted the CIA Information
Act to strike a balance between public disclosure and an
effective intelligence apparatus. Our role is not to reassess
the relative interests, see Sims, 471 U.S. at 180, or to yield
whenever human sympathies are engaged, but simply to apply the
law as Congress wrote it. Given the generality of appellant's
request and the stringent standard of confidentiality contained
in the Information Act, the district court appropriately granted
summary judgment in the government's favor. Further, as we have
explained, the freshly minted JFK Act claim provides no
principled basis for a remand and, thus, no detour around the
ruling below.
Affirmed.
17
