Appeal from the United States District Court for the Eastern District of California. D.C. No. CV 94-5747-GEB. Garland E. Burrell, Jr. District Judge, Presiding.
Before: Thomas G. Nelson, A. Wallace Tashima, Circuit Judges, and James M. Burns, District Judge.*fn* Opinion by Judge Tashima.
Invoking the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), plaintiff-appellant David Minier ("Minier") requested defendant-appellee Central Intelligence Agency (the "CIA") to disclose whether Claude Barnes Capehart ("Capehart"), acting as a CIA agent, was involved in a CIA plot to assassinate President John F. Kennedy. The CIA, relying on certain exemptions to the FOIA, refused to confirm or deny Capehart's alleged employment with the CIA. The district court granted summary judgment for the CIA, and Minier appeals.
We have jurisdiction under 28 U.S.C. § 1291. Because the CIA is exempted from disclosing agent names under the plain language of 50 U.S.C. §§ 403g and 403-3(c)(5), we affirm.
Certain historical facts are unassailable, while others are constantly subject to attack and, ultimately, remain shrouded in mystery and confusion. Both types of facts surround the assassination of President John F. Kennedy. We know beyond dispute, that on November 22, 1963, President Kennedy was tragically shot and killed while traveling through the streets of Dallas, Texas. We also know that a single individual, Lee Harvey Oswald, was arrested and portrayed to the public as the sole assassin. Over the past thirty years, however, many people have debated the accuracy of the sole assassin theory, positing that one individual could not have accomplished the task alone. Although many conspiracy theories have been generated through the years, the most infamous theory alleges CIA involvement in the assassination.*fn1 In June, 1975, the Rockefeller Commission, established by President Ford, released a report finding "no credible evidence of any CIA involvement." H.R.Rep. No. 625(II), 102d Cong., 2d Sess. 10 (1992) (quoting Report to the President by the Comm'n on CIA Activities within the U.S., June 1975, at 269). As this case reveals, however, concerns about the role the CIA played in the Kennedy assassination have not yet been laid to rest.
Capehart, who died in 1989, claimed to have been a CIA agent involved in the assassination of President Kennedy. In February, 1992, Minier made a FOIA request of the CIA to determine whether the CIA had ever employed Capehart, directly or indirectly. In March, 1992, the CIA denied the request based on its policy never to "confirm nor deny the past or present affiliation of individuals with the CIA."
In April, 1992, Minier administratively appealed this decision within the CIA. The CIA responded that there would be a delay in the consideration of his appeal because of a backlog of 400 earlier filed appeals. In June, 1994, Minier expanded his original request to include all records of the "activities, assignments, actions and whereabouts of Claude Barnes Capehart during the month of November, 1963." In October, 1994, the CIA denied Minier's appeal. Relying on Exemptions 1 and 3 of FOIA, 5 U.S.C. §§ 552(b)(1) and (b)(3), the CIA concluded that to confirm or deny a relationship between the CIA and Capehart would jeopardize national security and compromise CIA sources and methods.
In July, 1994, before the CIA acted on his appeal, Minier filed this action to compel the CIA to release the requested information.*fn2 In August, 1994, Minier filed a motion for a Vaughn index.*fn3 The magistrate Judge denied the motion, concluding that the parties' legal arguments would not be aided by an index of CIA documents pertaining to Capehart.
The CIA thereafter sought summary judgment. The CIA submitted a declaration in support of its motion ("CIA declaration"), which explained that protection of the identities of CIA personnel is necessary for the development, maintenance and protection of secret contacts both in the United States and abroad. The district court granted the CIA's motion for summary judgment and denied Minier's motion for reconsideration of the magistrate's denial of a Vaughn index. The district court concluded: (1) the information was properly exempted under both Exemptions 1 and 3; (2) there was no evidence of CIA bad faith; and (3) a Vaughn index would not aid Minier's ability to contest the applicability of the exemptions. This appeal followed.
Ordinarily, we review summary judgments de novo. In FOIA cases, because of their unique nature, we have adopted a two-step standard of review. Schiffer v. ...