FAS | Secrecy | August 2001 News ||| Index | Search | Join FAS

                  United States Court of Appeals


        Argued October 6, 2000    Decided August 7, 2001 

                           No. 99-5316

               Students Against Genocide, et al., 


                  Department of State, et al., 

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 96cv00667)

     George S. LaRoche argued the cause and filed the briefs for 

     Douglas N. Letter, Appellate Litigation Counsel, U.S. De-
partment of Justice, argued the cause for appellees.  With 
him on the brief were David W. Ogden, Acting Assistant 
Attorney General at the time the brief was filed, and Wilma 

A. Lewis, U.S. Attorney at the time the brief was filed.  
Leonard Schaitman, Attorney, entered an appearance.

     Before:  Rogers and Garland, Circuit Judges and 
Silberman, Senior Circuit Judge.*

     Garland, Circuit Judge:  Pursuant to the Freedom of 
Information Act (FOIA), 5 U.S.C. s 552, Students Against 
Genocide and other individuals and organizations (collectively 
"SAGE" or "plaintiff") seek agency records relating to human 
rights violations committed by Bosnian Serb forces in Bosnia 
during the summer of 1995.  We affirm the district court's 
grant of summary judgment in favor of the agencies, and 
remand a limited issue regarding SAGE's eligibility for attor-
ney's fees and costs.


     Plaintiff's FOIA requests focus primarily on a presentation 
made by then-U.S. Ambassador Madeleine Albright to the 
United Nations Security Council on August 10, 1995.  A New 
York Times article published the following day reported that 
Albright "told a closed door session of the Security Council 
that 2,000 to 2,700 missing Bosnians ... might have been 
shot by the Bosnian Serbs" when the Serbs seized the 
Bosnian town of Srebrenica in July 1995.  Barbara Crossette, 
U.S. Seeks to Prove Mass Killings, N.Y. Times, Aug. 11, 1995, 
at A3.  According to the article, Albright supported the 
allegation by showing classified "spy satellite" and "spy 
plane" photographs to the Security Council.

     The Times article reported that some of the photographs, 
taken in mid-July 1995, showed "mounds of freshly dug 
patches of earth" in areas where Bosnian Muslim families 
were said to have been "herded together."  One photograph 
showed "about 600 people gathered in a soccer field," and 
another, taken a few days later, showed "areas of freshly dug 
earth" at the same location.  The article reported that after 
Albright's presentation, the Clinton Administration publicly 

     * Senior Judge Silberman was in regular active service at the 
time of oral argument.

released three of the photographs, "taken from a U-2 spy 
plane," that "showed the disturbed soil."  The Administration 
decided to publicize the photographs, the article reported, "to 
put pressure on the Bosnian Serbs to support a new peace 
effort being promoted among European allies and the war-
ring parties in the Balkans."  Id.

     On October 12 and 18, 1995, SAGE filed identical requests 
for production of four categories of records from the Depart-
ment of State, the Department of Defense, and the Central 
Intelligence Agency (CIA).  As subsequently clarified, the 
first two request categories, based on the New York Times 
article, sought all photographs and documents used by Al-
bright during her presentation to the Security Council.  The 
third category, of a more general nature, sought any docu-
mentation of atrocities in Bosnia from 1993 to the present.  
The fourth category sought information referred to in a letter 
that Michael Habib, Director of the State Department's Office 
of Eastern European Affairs, sent to Beth Stephens, of the 
Center for Constitutional Rights, on March 24, 1993.  The 
"Habib Letter" stated that the United States had reported 
information concerning "rape and other grave breaches of the 
Geneva Conventions" to the United Nations.  Letter from M. 
Habib to B. Stephens (Mar. 24, 1993) (quoted in Kadic v. 
Karadzic, 70 F.3d 232, 250 n.10 (2d Cir. 1995)).1 
     1  The four request categories were as follows:

     (1) All of the satellite photographs and aerial photographs 
     taken in the Srebrenica area of Bosnia ... by US spy planes 
     and satellites which surveyed the area when and immediately 
     after Srebrenica was overrun by Bosnian Serb forces in, about, 
     and after July 11th, 1995, including those pictures of people 
     crowded into a soccer field and other places before, during and 
     after they were massacred, including all of those displayed by 
     Madeleine K. Albright, the United States delegate to the 
     United Nations, to the members of the United Nations Security 
     Council on or about August 10th, 1995 ....
     (2) The documents containing the allegedly "sensitive informa-
     tion" shared on or about August 10th, 1995, by the United 
     States with the members of the Security Council, and the 
     "unique information" obtained by the United States and shared 
     at the same time with the members of the Security Council as 
     well as the eyewitness accounts and U.S. Intelligence data 
     which "provides compelling evidence of barbarous and system-
     atic murder by the Bosnia Serbs" in the area of Srebrenica ... 
     specifically referred to by Madeleine Albright in her statement 
     to the Security Council on or about August 10, 1995.
     (3) Any documentation of the above nature pertaining to the 
     commission of war crimes, genocide and atrocities in Bosnia 
     from 1993 to the present ....
     (4) [Information concerning] "rape and other grave breaches of 
     the Geneva Conventions" stated by Michael J. Habib, Director, 
     Office of Eastern European Affairs, United States Department 
     of State, to have been "reported" by the United States "to the 
     United Nations" in his letter to Beth Stephens, Center for 
     Constitutional Rights, March 24, 1993.
J.A. at 12-13, 18.
     In April 1996, at which time the agencies had not yet 
released any documents in response to plaintiff's FOIA re-
quests, SAGE filed a complaint in the United States District 
Court for the District of Columbia.  SAGE sought an order, 
pursuant to 5 U.S.C. s 552(a)(4)(B) and (E), directing the 
agencies to produce the four categories of requested records 
and to pay attorney's fees and other litigation costs.  SAGE 
subsequently dismissed its claim with respect to the "Catego-
ry Three" request, and only the Category One, Two, and 
Four requests remain at issue in this litigation.

     On October 10, 1997, after producing documents in re-
sponse to plaintiff's requests, the defendant agencies filed a 
motion for summary judgment.2  The agencies asserted that 

     2  The agencies' motion was for partial summary judgment 
regarding Categories One, Two, and Four.  As noted, SAGE subse-
quently dismissed its claim regarding Category Three.

they had conducted a reasonable search and had released all 
responsive documents (or reasonably segregable portions 
thereof), except those that were exempt from release under 
(inter alia) two FOIA exemptions:  Exemption 1, which pro-
tects records properly classified in the interest of national 
defense or foreign policy, 5 U.S.C. s 552(b)(1), and FOIA 
Exemption 3, which protects records specifically exempted 
from disclosure by statutes other than FOIA, 5 U.S.C. 
s 552(b)(3).  Defs.' Mot. for Partial Summ. J. at 8.

     The district court referred the case to a magistrate judge, 
who conducted a hearing and issued a report recommending 
that the court grant the agencies' motion for summary judg-
ment.  In his report, the magistrate first noted SAGE's 
complaint that the agencies had produced, or withheld and 
indexed, many documents plaintiff believed were outside the 
scope of its requests.  The magistrate explained that during 
the hearing it had become clear that the parties had "differ-
ent interpretations" of the breadth of SAGE's requests.  Stu-
dents Against Genocide v. Dep't of State, No. CIVA96-667, 
1998 WL 699074, at *3 (D.D.C. Aug. 24, 1998) ("First Mag. 
Rep't").  Plaintiff, he said, "view[s] [its] requests as very 
narrow, seeking at most a handful of photographs and docu-
ments utilized by Albright at her presentation to the U.N. 
Security Council, and a few specific documents to which a 
[Department of State] official (Habib) referred in a particular 
letter."  Id. The agencies, by contrast, "read the requests 
much more broadly by focusing on the phrase 'documents 
containing the allegedly "sensitive information" shared' by 
Albright with the Security Council....  Thus, they searched 
for, and produced, documents which were not necessarily 
used at the presentation but which contained the information 
Albright shared."  Id.

     The magistrate also reported that SAGE "sought a state-
ment from defendants that the documents which were pro-
cessed ... were responsive to plaintiffs' three very specific 
information requests."  Id.  Accordingly, the magistrate had 
"secured a statement from the defendants that the informa-
tion transmitted to [SAGE] was responsive to categories one 
and two of the request as they related to Albright's presenta-
tion."  Id.  The government further confirmed that all of the 
information responsive to plaintiff's Category One and Two 
requests had either been released or withheld as exempt.  Id. 
(quoting Tr. at 48).  With respect to Category Four, the 
information referred to in the Habib Letter, the government 
represented that it had located three documents responsive to 
the request and had released all three to plaintiff.  Id. at 11 
n.17.  The magistrate pronounced himself satisfied with "the 
responsiveness of the released information."  Id. at 4.

     Finally, the magistrate turned to the agencies' searches, 
and to the affidavits, commonly known as Vaughn indices,3 
that listed the withheld documents and justified their with-
holding under FOIA Exemptions 1 and 3.  After reviewing 
the agencies' declarations, the magistrate found the searches 
reasonable, the Vaughn indices sufficiently detailed, and the 
exemptions properly invoked.  As a result, the magistrate 
recommended that the district court grant the agencies' 
motion for summary judgment.4

     On September 29, 1998, after conducting a de novo review 
of the summary judgment materials, the district court 
adopted the magistrate's report in full.  In addition, the court 
rejected SAGE's argument that the magistrate should not 
have accepted the representations of government counsel that 
the documents produced and/or indexed were responsive to 
plaintiff's requests, but should instead have required counsel 
to file further affidavits.  The court held that SAGE had 
waived this argument by failing to assert it before the magis-
trate.  See Students Against Genocide v. Department of 
State, No. 96cv0667, slip op. at 3-4 (D.D.C. Sept. 29, 1998) 
("Dist. Ct. Op.").

     After the district court granted summary judgment, but 
before the time for appeal had run, plaintiff filed a motion to 

     3  See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973);  
see also Mays v. DEA, 234 F.3d 1324, 1326 (D.C. Cir. 2000).

     4  The magistrate also found that one document was covered by 
Exemptions 5 (deliberative process privilege) and 6 (personal priva-
cy).  Those exemptions are not at issue on appeal.

reconsider based on further disclosure letters it had received 
from the government.  The district court issued an order 
requiring the government to respond, and, after further 
pleadings, again referred the matter to the magistrate.  Upon 
the government's second motion for summary judgment, the 
magistrate determined that a component of the Department 
of Defense, the Defense Intelligence Agency (DIA), had found 
and properly withheld a single document--a classified memo-
randum from the Director of the DIA to the Chairman of the 
Joint Chiefs of Staff.  Students Against Genocide v. Dep't of 
State, 50 F. Supp. 2d 20 (D.D.C. 1999) ("Second Mag. Rep't").  
The district court denied SAGE's motion for reconsideration 
of its first summary judgment order, and, on July 22, 1999, 
adopted the magistrate's recommendation to grant the gov-
ernment's second motion for summary judgment.  SAGE 
then filed the instant appeal.5


     FOIA requires federal agencies to disclose, upon request, 
broad classes of agency records unless the records are cov-
ered by the statute's exemptions.  See 5 U.S.C. 
s 552(a)(3)(A), (b).  In a suit brought to compel production, 
an agency is entitled to summary judgment if no material 
facts are in dispute and if it demonstrates "that each docu-
ment that falls within the class requested either has been 
produced ... or is wholly exempt from the Act's inspection 
requirements."  Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 
1978);  see Billington v. Dep't of Justice, 233 F.3d 581, 583-84 

     5  SAGE filed its notice of appeal two days after the deadline set 
by Federal Rule of Appellate Procedure 4(a)(1)(B).  The district 
court granted SAGE's timely motion to extend the time for appeal 
under Rule 4(a)(5), which authorizes district courts to grant an 
extension upon a showing of "excusable neglect."  We review such 
orders on an abuse of discretion standard, see Johnson v. Lehman, 
679 F.2d 918, 919-20 (D.C. Cir. 1982), and we reject the govern-
ment's suggestion that the district court's determination of "excusa-
ble neglect" constituted such an abuse.  See Pioneer Inv. Servs. Co. 
v. Brunswick Ass'n, 507 U.S. 380, 388 (1993);  Marx v. Loral Corp., 
87 F.3d 1049, 1054 (9th Cir. 1996).

(D.C. Cir. 2000).  Moreover, in national security cases like 
this one, "Congress has instructed the courts to accord 'sub-
stantial weight' to agency affidavits."  Goland, 607 F.2d at 
352;  see also Abbotts v. Nuclear Regulatory Comm'n, 766 
F.2d 604, 606 (D.C. Cir. 1985).

     The two FOIA exemptions at issue in this case are Exemp-
tions 1 and 3.  Exemption 1 declares that FOIA is inapplica-
ble to matters that are "(A) specifically authorized under 
criteria established by an Executive order to be kept secret in 
the interest of national defense or foreign policy and (B) are 
in fact properly classified pursuant to such Executive order."  
5 U.S.C. s 552(b)(1).  To support its Exemption 1 claims, the 
government invoked Executive Order 12,958, which autho-
rizes the classification of (inter alia) information that concerns 
"intelligence sources or methods,"6 and Executive Order 
12,951, which specifies that imagery acquired by space-based 
national intelligence reconnaissance systems "shall be kept 
secret in the interests of national defense and foreign policy 
until deemed otherwise by the Director of Central Intelli-
gence."7  FOIA Exemption 3 applies to matters "specifically 
exempted from disclosure by [a] statute" other than FOIA.  5 
U.S.C. s 552(b)(3).  To support its Exemption 3 claims, the 
government invoked the National Security Act of 1947, which 
provides that the Director of Central Intelligence shall "pro-
tect intelligence sources and methods from unauthorized dis-
closure."  50 U.S.C. s 403-3(c)(6);  see Miller v. Casey, 730 
F.2d 773, 777 (D.C. Cir. 1984) (holding that this provision of 
the Act supports Exemption 3).8

     6  Exec. Order No. 12,958, s 1.5(c), 60 Fed. Reg. 19,825 (Apr. 17, 
1995), reprinted in 50 U.S.C. s 435.

     7  Exec. Order No. 12,951, s 2, 60 Fed. Reg. 10,789 (Feb. 22, 
1995), reprinted in 50 U.S.C. s 435.

     8  The CIA also invoked the Central Intelligence Agency Infor-
mation Act of 1984, 50 U.S.C. s 431, in support of its claim to 
protection under Exemption 3.  As the government notes, however, 
we need not consider SAGE's challenge to the applicability of that 
Act because the agency invoked the National Security Act for the 
same photographs.

      In the following Parts, we consider SAGE's challenges to 
the adequacy of the agencies' responses to the three request 
categories still at issue in this litigation.  We review the 
district court's grant of summary judgment de novo.  See Al-
Fayed v. CIA, No. 00-5457, 2001 WL 788094, at *6 (D.C. Cir. 


     SAGE's Category One request, as clarified during the 
litigation, sought the satellite and aerial (airplane) photo-
graphs of the Srebrenica area that Ambassador Albright 
actually displayed to the United Nations Security Council on 
August 10, 1995.  In response to this request, the government 
released fourteen aerial photographs, two of which it specifi-
cally identified as photographs displayed by the Ambassador.  
All other responsive photographs were withheld on grounds 
of national security, pursuant to FOIA Exemptions 1 and 3.9 
The government confirmed that one of the withheld docu-
ments was the photograph of 600 people crowded into a 
soccer field, as referred to in the New York Times article.  
First Mag. Rep't, 1998 WL 699074, at *4.  The CIA is the 
only agency currently withholding records responsive to Cat-
egory One.

     SAGE has three objections to the manner in which the 
agencies have responded to its Category One request.  We 
consider those objections below.

     9  The government stated that any satellite imagery that existed 
was protected from disclosure under Exemptions 1 and 3, but that 
it could neither confirm nor deny the existence of such imagery.  
Strickland Decl. at 6.  We have held such a response, commonly 
referred to as a Glomar response, to be "appropriate where an 
acknowledgment that records exist would provide the requester 
with the very information the exemption is designed to protect."  
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 n.8 (D.C. 
Cir. 1995);  see Phillippi v. CIA, 546 F.2d 1009, 1015 (D.C. Cir. 
1976) (remanding for further proceedings case in which the CIA 
refused to confirm or deny the existence of materials relating to a 
vessel called the Glomar Explorer).  On appeal, SAGE raises no 
issues regarding the government's assertion of a Glomar response.


     Plaintiff first suggests that the agencies must not have 
found and/or released all responsive photographs, because 
they have not expressly said so by affidavit.  The magistrate, 
however, obtained and accepted the representation of agency 
counsel that the photographs released to SAGE, together 
with those withheld as exempt, constitute all photographs 
responsive to plaintiff's Category One request.  First Mag. 
Rep't, 1998 WL 699074, at *3-4.  Government counsel made 
the same representation to this court at oral argument.

     In the district court, plaintiff objected to the magistrate's 
report on the ground that the magistrate should not have 
accepted counsel's representations, but instead should have 
required the agencies to file additional affidavits to the same 
effect.  The district court rejected this argument, holding 
that plaintiff had waived it by failing to raise it before the 
magistrate.  Dist. Ct. Op. at 3-4.10  In this court, plaintiff's 
opening brief did not challenge the district court's holding of 
waiver.  Although plaintiff did address the issue in its reply, 
we have repeatedly held that an argument first made in a 
reply brief ordinarily comes too late for our consideration, 
and we see no reason to depart from that rule here.  See, e.g., 

     10  The court stated:

     Plaintiffs neither requested during the hearing, nor in the 
     three intervening months between the hearing and the Report 
     and Recommendation, that the Court or the Magistrate Judge 
     direct defendants to provide affidavits containing the declara-
     tions made on the record regarding the adequacy of the search 
     and the responsiveness of the information released and with-
Id. at 2-3.  In support of its conclusion that this failure waived the 
objection, the district court cited Marshall v. Chater, 75 F.3d 1421, 
1426 (10th Cir. 1996) ("Issues raised for the first time in objections 
to the magistrate judge's recommendation are deemed waived."), 
and Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. 
Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("[A]n unsuccessful party is 
not entitled as of right to de novo review by the judge of an 
argument never seasonably raised before the magistrate.").
Bd. of Regents of the Univ. of Washington v. EPA, 86 F.3d 
1214, 1221 (D.C. Cir. 1996) ("By failing to make any specific 
objection until their reply brief, petitioners deprived the 
[respondents] of the opportunity to respond.  To prevent this 
..., we have generally held that issues not raised until the 
reply brief are waived.").


     SAGE's second objection to the government's Category 
One response relates to the photographs withheld by the 
CIA.  SAGE does not contest that those photographs were, 
at least initially, properly classified and exempt from disclo-
sure under FOIA Exemptions 1 and 3.  See First Mag. Rep't, 
1998 WL 699704, at *8.  It contends, however, that in light of 
the way the government subsequently treated those photo-
graphs, any otherwise applicable exemptions have been 
waived.11  This argument has two variations.


     SAGE first argues that since the government did release 
fourteen photographs, thereby acknowledging that their dis-
closure would not harm the national security, it cannot plausi-
bly assert that disclosure of the remaining photos would be 
injurious.  Moreover, SAGE contends that even if disclosure 
of the remaining photos would be harmful, whatever damage 
their release could do has already been done by the disclosure 
of the fourteen.

     We disagree.  The fact that some "information resides in 
the public domain does not eliminate the possibility that 
further disclosures can cause harm to intelligence sources, 
methods and operations."  Fitzgibbon v. CIA, 911 F.2d 755, 

     11  The district court ruled that SAGE had waived this waiver 
argument by failing to raise it before the magistrate.  Dist. Ct. Op. 
at 3.  However, because the government concedes that "plaintiffs' 
counsel did appear to raise this argument" at the magistrate 
hearing, we consider it here.  Govt Br. at 57 n.7.

766 (D.C. Cir. 1990).  The CIA's affidavit provided a detailed 
description of the risk to intelligence sources and methods 
posed by release of reconnaissance imagery.  See Strickland 
Decl. at 5-15.  Of special concern was the risk that profes-
sional image analysts would be able to combine a photograph 
with other known information to determine the technical 
capabilities of the reconnaissance system that produced it, 
and that once those capabilities were determined, foreign 
governments would be able "to take countermeasures to 
conceal activities of interest to U.S. foreign policymakers."  
Id. at 9.  The CIA's expert averred that the released photo-
graphs were "individually reviewed" for these concerns, and 
were released only after it was determined that "release of 
these ... particular images would not damage the national 
security."  Id. at 15.  He concluded, however, that release of 
any withheld documents "reasonably could be expected to 
result in" such damage.  Id.

     The assessment of harm to intelligence sources and meth-
ods "is entrusted to the Director of Central Intelligence, not 
to the courts."  Fitzgibbon, 911 F.2d at 766.  Moreover, 
particularly because the government did release numerous 
photographs, we see no reason to question its good faith in 
withholding the remaining photographs on national security 
grounds.  Accordingly, we reject SAGE's contention that by 
releasing some photographs to plaintiff, the government 
waived its right to withhold any others.  Cf. Military Audit 
Project v. Casey, 656 F.2d 724, 753-54 (D.C. Cir. 1981) (noting 
that penalizing an agency for voluntarily declassifying docu-
ments would "work mischief" by creating an incentive against 


     SAGE also argues that Ambassador Albright waived the 
government's right to invoke the FOIA exemptions by dis-
playing the withheld photographs to the delegates of the 
foreign governments that are members of the Security Coun-
cil.  Once those delegates saw the photographs, SAGE ar-
gues, any legitimate national security interest in keeping 
them secret was lost.

     This circuit has held that the government may not rely on 
an otherwise valid exemption to justify withholding informa-
tion that is already in the "public domain."  See Cottone v. 
Reno, 193 F.3d 550, 554-55 (D.C. Cir. 1999);  Fitzgibbon v. 
CIA, 911 F.2d at 765-66;  Afshar v. Dep't of State, 702 F.2d 
1125, 1130-31 (D.C. Cir. 1983).  We have noted, however, that 
"while the logic of FOIA postulates that an exemption can 
serve no purpose once information ... becomes public, we 
must be confident that the information sought is truly public 
and that the requester receive no more than what is publicly 
available before we find a waiver."  Cottone v. Reno, 193 F.3d 
at 555 (internal quotation and citation omitted).  For the 
public domain doctrine to apply, the specific information 
sought must have already been "disclosed and preserved in a 
permanent public record."  Id. at 554;  see Davis v. Dep't of 
Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992).

     The photographs in question here plainly do not fall within 
that doctrine.  They were not released to the general public;  
only the Security Council delegates saw them.  In fact, the 
photographs were not "released" at all.  Although Ambassa-
dor Albright displayed them to the delegates, she retained 
custody, and none left the U.N. chamber.  See Grafeld Decl. 
at 19.  Hence, there is no "permanent public record" of the 
photographs.  See Cottone, 193 F.3d at 554.

     SAGE acknowledges that this case does not fall within the 
letter of the public domain doctrine, but urges that it repre-
sents merely "a slight variation" on the theme.  SAGE Br. at 
24.  Although the photographs were not released into the 
public domain, plaintiff argues that they were displayed to the 
very parties against whom the exemption was intended to 
provide protection:  foreign governments, including some that 
cannot be characterized as American allies.  SAGE contends 
that by disclosing the photographs to the members of the 
Security Council, the government has already let "the cat ... 
out of the bag," and whatever damage disclosure might do 
has already been done.  SAGE Br. at 24.  Surely, SAGE 
suggests, further release to American citizens and organiza-
tions cannot pose greater risk to the national security than 
release to "foreign governments, which are more likely to 
convey [classified imagery] to our erstwhile enemies than 
[SAGE]."  Id.

     Again we disagree, for three reasons.  First, we note that 
it is irrelevant that the plaintiff requesters are Americans, as 
a disclosure made to any FOIA requester is effectively a 
disclosure to the world at large.  The courts lack authority to 
limit the dissemination of documents once they are released 
under FOIA, or to choose selectively among recipients.  See 
Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996);  see also 
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 
1088 n.5 (9th Cir. 1997);  1 James T. O'Reilly, Federal 
Information Disclosure ss 9:37-:44 (3d ed. 2000).  Hence, we 
must assume that if the requested photographs are released, 
they will eventually make their way to foreign governments 
and others who may have interests that diverge from those of 
the United States.12

     Second, we find nothing unreasonable in the government's 
contention that it may have affirmative foreign policy reasons 
for sharing sensitive information with some foreign govern-
ments and not others.  As in this case, the government may 
well decide that its foreign policy objectives--here, the gar-
nering of support for opposition to ongoing genocide--require 
disclosing information to member countries of the United 
Nations Security Council that may be in a position to assist 
the United States in its efforts, yet at the same time require 

     12  See Swan, 96 F.3d at 500 ("Agencies, and hence courts, must 
evaluate the risk of disclosing records to some particular FOIA 
requester not simply in terms of what the requester might do with 
the information, but also in terms of what anyone else might do 
with it.");  see also Military Audit Project, 656 F.2d at 730 n.11 
(noting that the identity of the FOIA requester is immaterial and 
that, "for example, there is no statutory bar to the military attache 
of the Soviet embassy filing FOIA requests for information from 
the CIA and the FBI on the same basis as a United States citizen").

protecting that information from disclosure to other countries 
that may actively oppose those policy objectives.

     Third, it is significant that Ambassador Albright displayed, 
but did not distribute, the photographs in question.  The 
government asserts that this display was unlikely to compro-
mise the technical capabilities of its reconnaissance systems, 
because the U.N. delegates were not likely to possess the 
expert qualifications required to analyze the photographs, 
particularly during such a brief viewing.  Public (and perma-
nent) release of the documents, by contrast, would offer 
professional imagery analysts the opportunity to make de-
tailed examinations.  It is precisely on a point like this "that a 
court, lacking expertise in the substantive matters at hand, 
must give substantial weight to agency statements, so long as 
they are plausible and not called into question by contrary 
evidence or evidence of agency bad faith."  Halperin v. CIA, 
629 F.2d 144, 149 (D.C. Cir. 1980);  see Frugone v. CIA, 169 
F.3d 772, 775 (D.C. Cir. 1999);  Hayden v. Nat'l Sec. Agency, 
608 F.2d 1381, 1388 (D.C. Cir. 1979).  As the government's 
assessment is plausible, and as there is no contrary evidence 
or evidence of bad faith, we accept its representations and 
reject the suggestion that the display of the photographs to 
the Security Council waived the government's right to with-
hold them from release under FOIA.


     Finally, SAGE contends that even if the agencies do not 
want to disclose the photographs in their present state, they 
should produce new photographs at a different resolution in 
order to mask the capabilities of the reconnaissance systems 
that took them.  But although agencies are required to 
provide "any reasonably segregable," non-exempt portion of 
an existing record, 5 U.S.C. s 552(b), they are not required to 
create new documents.  See Yeager v. DEA, 678 F.2d 315, 321 
(D.C. Cir. 1982) ("It is well settled that an agency is not 
required by FOIA to create a document that does not exist in 
order to satisfy a request."  (citing NLRB v. Sears, Roebuck 
& Co., 421 U.S. 132, 161-62 (1975))).  We are therefore 
without authority to direct the government to adopt SAGE's 
"compromise" suggestion.

     In sum, we find no merit in SAGE's objections to the 
manner in which the agencies handled its Category One 
request, and affirm the district court's grant of summary 
judgment as to that issue.


     In its Category Two request, again as clarified during the 
litigation, SAGE sought documents, other than photographs, 
that were "shared" or "specifically referred to" by Ambassa-
dor Albright during her presentation to the Security Council 
on August 10, 1995.  In response to this request, the State 
Department released 46 documents in their entirety and 32 in 
part, Grafeld Decl. at 9;  the National Security Agency (NSA) 
released part of one document that State had referred to it 
for review, Grantham Decl. at 2;  and the CIA released three 
documents and three maps, Strickland Decl. at 4.  Neither 
the Department of Defense nor the DIA released any docu-
ments, Defs.' Mot. for Partial Summ. J. at 10.  All remaining 
responsive documents were withheld as exempt from produc-
tion under FOIA.  In response to SAGE's clarification that it 
sought documents Albright actually shared with the members 
of the Security Council, the government explained that Al-
bright did not share any documents;  she shared only infor-
mation, and the documents that the agencies designated as 
responsive were those containing that information.  Gov't Br. 
at 48 (citing Mag. Hr'g Tr. at 36-40, 43-47).13

     13  The distinction is important and is, presumably, the reason 
that SAGE does not argue on appeal that Albright waived the 
government's FOIA exemptions by discussing the information con-
tained in the documents, as it does argue with respect to her 
display of the photographs considered in Part III supra.  Cf. 
Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C. Cir. 1993) 
("The law of this circuit provides that an agency official does not 
waive FOIA Exemption 1 by publicly discussing the general subject 
matter of documents which are otherwise properly exempt from 
disclosure under that exemption.").

     We consider SAGE's objections to the State Department's 
response to this category in Section A below, and consider its 
objections to the other agencies' responses in Section B.


     SAGE questions the adequacy of the search the State 
Department conducted for the Category Two documents.  To 
merit summary judgment on the adequacy of a search, an 
"agency must demonstrate beyond material doubt that its 
search was reasonably calculated to uncover all relevant 
documents."  Nation Magazine v. U.S. Customs Service, 71 
F.3d 885, 890 (D.C. Cir. 1995) (internal quotation omitted).  
The agency "must make a good faith effort to conduct a 
search for the requested records, using methods which can be 
reasonably expected to produce the information requested."  
Id. (internal quotation omitted).  Summary judgment may be 
based on affidavit, if the declaration sets forth sufficiently 
detailed information "for a court to determine if the search 
was adequate."  Id.

     The State Department's affidavit meets this standard.  The 
Department declared that it searched twelve separate records 
systems, including those of several bureaus in Washington, 
three American embassies in Europe, and two American 
missions to the United Nations and other international orga-
nizations.  Grafeld Decl. at 7-8.  The declaration also states 
that the search resulted in the retrieval and review of 137 
documents, and notes that of these, 46 were released in their 
entirety, 32 were released in part, 9 were withheld in full, 21 
were transferred to other agencies for review and direct 
response, and 29 were ultimately deemed non-responsive.  Id. 
at 9.  Moreover, the government has further represented that 
the Department produced all the documents it could reason-
ably locate containing the information SAGE sought in its 
Category Two request.  Gov't Br. at 48 (citing Mag. Hr'g Tr. 
at 36-40, 43-47).

     SAGE argues that "[w]hile it might usually be reasonable 
to take an agency affidavit as indicative of a comprehensive 
search and retrieval of 'responsive' information, this usual 
course of analysis must be discarded where an agency refer-
ences so many documents as 'responsive' when those docu-
ments, on their face, do not comport with the FOIA request 
at issue."  SAGE Br. at 15-16.  SAGE asserts that docu-
ments responsive to its Category Two request could not have 
been generated earlier than July 10, 1995, the approximate 
date when Bosnian Serb forces overran Srebrenica, nor later 
than August 10, the date of Ambassador Albright's presenta-
tion.  Focusing on the withheld documents described in the 
State Department's Vaughn index, SAGE states that only 
seven fall within the appropriate date range.  SAGE rejects 
the responsiveness of even those seven, on the ground that 
the Vaughn index descriptions do not specify that the docu-
ments were actually used in Ambassador Albright's presenta-
tion.  All of this, SAGE contends, shows "a serious problem 
of bad faith" on the part of the State Department.  SAGE Br. 
at 15.

     We do not agree that the evidence SAGE points to amounts 
to a showing of bad faith.  The withheld documents were not 
the only ones turned up in the State Department's search;  
the Department also released numerous documents, including 
significant ones that fall within the requested date range and 
are responsive to plaintiff's request.  One document, for 
example, is a report from the Assistant Secretary of State for 
Human Rights, who traveled to Bosnia on July 30-August 1, 
1995 and received eyewitness accounts of mass executions in 
the relevant areas.  Indeed, the State Department even 
produced the six-page, single-spaced "script" prepared for 
Ambassador Albright's use during her presentation to the 
Security Council.  Although SAGE dismisses the script as 
nonresponsive to its request because it is merely a "second-
hand account" of the information used by the Ambassador, we 
regard the Department's production of the document as quite 

     Further, the fact that many of the released and indexed 
documents fall outside the July 10-August 10, 1995 date 
range does not suggest an effort by State to hide a needle in 
a haystack, as SAGE asserts.  As the magistrate explained, 
the parties simply had different understandings of the scope 
of SAGE's Category Two request.  Because that request 
sought "documents containing the allegedly 'sensitive infor-
mation' shared" by Ambassador Albright on August 10, 1995, 
the government fairly read it as requesting documents refer-
encing that information even if they post-dated the Ambassa-
dor's presentation.  Moreover, SAGE's Category Three re-
quest, not dismissed until later in the litigation, sought "[a]ny 
documentation of the above nature [referring to Categories 
One and Two] pertaining to the commission of war crimes, 
genocide and atrocities in Bosnia from 1993 to the present."  
J.A. at 13.  This request expressly called for documents dated 
both prior to July 10, 1995 and after August 10, 1995, and 
hence the fact that State produced and indexed such docu-
ments is not an indication of bad faith.

     In sum, that the Department gave SAGE more information 
than it requested does not undermine the conclusion that its 
search was reasonable and adequate.


     In this Section we address SAGE's challenges to the other 
agencies' disposition of its Category Two request.

     SAGE challenges the decision of the NSA to withhold most 
of a two-page addendum to a State Department document, 
which State referred to the NSA for review because it 
originated with the agency.  The NSA released two introduc-
tory sentences of the addendum that describe the subject 
matter of the classified paragraphs.  See J.A. at 134.  The 
NSA explained that it withheld the remainder of the docu-
ment because:

     The information at issue identifies the targets whose 
     communications have been exploited.  To disclose any of 
     this information would inform those targets of their 
     vulnerabilities and of NSA's specific capabilities, sources 
     and methods.  If those targets learned or suspected that 
     their communications were being successfully exploited, 
     they would quickly act to engage countermeasures to 
     deny access to those communications by changing their 
Grantham Decl. at 6-7.  This justification for nondisclosure is 
sufficiently specific, in light of the substantial weight owed to 
agency explanations in the context of national security, to 
qualify for withholding under Exemptions 1 and 3.  Cf. 
Hayden, 608 F.2d at 1388 (regarding as "inherently logical" 
NSA's contention that disclosing the electromagnetic channels 
it monitors would impair its ability to collect intelligence 

     With respect to the CIA, SAGE contends that the agency's 
declaration is ambiguous as to whether it found any docu-
ments responsive to its Category Two request.  We do not 
find the declaration ambiguous.  It clearly states that the 
CIA released eleven aerial images, three documents, and 
three maps in response to SAGE's Category One and Two 
requests combined, and that any remaining CIA records were 
withheld as exempt.  See Strickland Decl. at 3-4.

     Finally, SAGE contends that it remains unclear whether 
documents withheld by the DIA are properly subject to 
exemption.  A reading of the DIA's declarations makes plain, 
however, that the DIA located and withheld only one respon-
sive document, a five-page memorandum from the Director of 
the DIA to the Chairman of the Joint Chiefs of Staff regard-
ing "Evidence of Mass Murder of Srebrenica Muslims."  See 
Second Richardson Decl. at 2;  Third Richardson Decl. at 2.  
We agree with the magistrate's conclusion that the DIA met 
its burden of establishing that release of the document would 
reveal the classified sources and methods used to collect the 
information it contains, and thus "enable foreign authorities 
to ... take counter measures which would damage the ability 
of the U.S. government to acquire" further information.  Sec-
ond Mag. Rep't, 50 F. Supp. 2d at 23 (citing Third Richardson 
Decl. at 5);  see id. at 26 & n.1.


     SAGE's Category Four request sought information specifi-
cally referred to in a letter that Michael Habib, Director of 
the State Department's Office of Eastern European Affairs, 
sent to Beth Stephens, of the Center for Constitutional 
Rights, on March 24, 1993.  The Habib Letter stated that the 
United States had reported information concerning "rape and 
other grave breaches of the Geneva Conventions" to the 
United Nations.  Habib Letter (quoted in Kadic v. Karadzic, 
70 F.3d at 250 n.10).  In its briefs on appeal, SAGE contend-
ed that State had not produced a single document containing 
the referenced information.

     Our resolution of SAGE's Category Four request has been 
greatly simplified by developments that ensued after the 
briefs in this case were filed.  On September 26, 2000, shortly 
before oral argument was scheduled to take place in this 
court, the government moved to dismiss SAGE's claim with 
respect to Category Four on the ground of mootness.  The 
government stated that it had recently discovered an October 
29, 1996 communication from the State Department to 
SAGE's attorney, enclosing all documents responsive to 
SAGE's Category Four request and withholding none.  The 
government sent SAGE a new copy of the 1996 communica-
tion and its enclosed documents.  SAGE's counsel replied 
that it was not clear whether the documents were truly 
responsive to its request, and that he had "no record or 
memory" of having received the documents in 1996.  Appel-
lants' Opp'n to Mot. for Conditional, Partial Dismissal at 4-5.

     On December 12, 2000, after this case was argued, govern-
ment counsel advised the court of yet another development:  a 
November 8, 2000 statement, written by Michael Habib, 
declaring that six of the documents produced to SAGE in 
October 1996 and retransmitted prior to oral argument in 
September 2000, constituted all of the documents to which he 
had referred in the Habib Letter.  After examining Habib's 
post-argument statement, SAGE advised us that it was now 
"satisf[ied] ... that the documents produced in September of 
2000 ... include the documents to which Mr. Habib referred 
in his letter to Beth Stephens [and] so are actually responsive 
to Category Four of SAGE's FOIA request."  Appellants' 
Resp. to Appellees' Letter Concerning the Merits of a Pend-
ing Mot. at 2.

     The government contends that whether or not SAGE re-
ceived the documents in October 1996, the pre-argument 
transmittal of all documents responsive to the Category Four 
request moots the litigation over the merits of that category.  
We agree.  Courts have "jurisdiction to enjoin the agency 
from withholding agency records and to order the production 
of any agency records improperly withheld from the com-
plainant," but if the government produces all responsive 
records, FOIA provides no further production-related relief.  
5 U.S.C. s 552(a)(4)(B);  see Cotton v. Heyman, 63 F.3d 1115, 
1118 (D.C. Cir. 1995);  Webb v. Dep't of Health and Human 
Servs., 696 F.2d 101, 107-08 (D.C. Cir. 1982).

     SAGE argues, however, that it is still entitled to attorney's 
fees and costs for its efforts to obtain the Category Four 
material.  See 5 U.S.C. s 552(a)(4)(E) (authorizing the district 
court to "assess against the United States reasonable attor-
ney fees and other litigation costs reasonably incurred in any 
case ... in which the complainant has substantially pre-
vailed");  Webb, 696 F.2d at 107-08 ("Granting full access to 
the requested documents ... terminates a FOIA action (ex-
cept possibly for attorneys' fees).").  The district court did 
not address the issue, and the government states that, "in 
order to determine if plaintiffs are entitled to" attorney's fees 
and costs, "a factual record would be helpful concerning when 
the State Department actually released the records sought."  
Reply to Appellants' Resp. to Appellees' Letter Concerning 
the Merits of a Pending Mot. at 3.  The government suggests 
a remand for that limited purpose, and since the parties have 
not briefed the question of attorney's fees and costs, we agree 
that a remand would be appropriate so that the district court 
can consider the issue in the first instance.14

     14  We note that, after the parties completed their post-
argument submissions in the instant case, the Supreme Court 
issued its opinion in Buckhannon Board & Care Home, Inc. v. West 
Virginia Department of Health & Human Resources, 121 S.Ct. 
1835 (2001).  That case held that the term "prevailing party," as 
employed in statutes authorizing the award of attorney's fees, does 
not include "a party that has failed to secure a judgment on the 
merits or a court-ordered consent decree, but has nonetheless 
achieved the desired result because the lawsuit brought about a 
voluntary change in the defendant's conduct."  Id. at 1838.  Be-
cause the parties have not briefed the question, we express no view 
regarding the applicability of Buckhannon to SAGE's request for 
attorney's fees.


     We remand to the district court SAGE's request for attor-
ney's fees and costs in connection with its Category Four 
request.  In all other respects, the district court's grant of 
summary judgment to the agencies is affirmed.

FAS | Secrecy | August 2001 News ||| Index | Search | Join FAS