GOLAND v. CENTRAL INTELLIGENCE AGENCY

WILKEY, Circuit Judge:

This case arises under the Freedom of Information Act (FOIA). Plaintiffs Goland and Skidmore requested documents from the Central Intelligence Agency (CIA) relating to the legislative history of the Agency's organic statutes. In this suit they challenge the thoroughness of the CIA's search for responsive documents and the Agency's refusal to give them certain admittedly responsive material it does possess. The district court granted summary judgment in favor of the CIA. We affirm.

5 U.S.C. § 552 (1976).

I. FACTUAL BACKGROUND

The chronology of events must be elaborated in some detail. On 2 May 1975 Sara Holtz filed an FOIA request with the CIA, seeking access to "all records concerning the legislative history" of the National Security Act of 1947, the CIA Act of 1949, and two bills introduced into Congress in 1948 providing for the administration of the Agency. Specifically, Holtz requested access to "all reports of the Committees of the House and Senate and the Conference Committee which reported on the bills, and any hearings which may have been held on these bills or related to the subject of the authority, organization and administration" of the CIA.

Holtz is not a party to this suit.

Act of 26 July 1947, ch. 343, § 102, 61 Stat. 497 (presently codified at 50 U.S.C. § 403 (1970)).

Act of 20 June 1949, ch. 227, §§ 1-10, 63 Stat. 208 (presently codified at 50 U.S.C. §§ 403a- 403j (1970)).

S. 2688, 80th Cong., 2d Sess. (1948); H.R. 5871, 80th Cong., 2d Sess. (1948).

Joint Appendix (J.A.) 12.

On 14 May the CIA responded to Holtz' letter, advising her that the documents she sought were congressional materials which would be available in the Library of Congress or the Government Printing Office. On 20 May 1975 Holtz wrote the Agency a second letter, stating her belief that hearings had been held on the bills she cited for which no transcripts were available in the Library of Congress, and requesting access to records of these hearings and to "any House, Senate or Conference Reports, besides those available in public libraries, that more fully explain the basis for the Committees' actions on these bills."

J.A. 14-15.

The Agency responded on 23 June 1975, informing Holtz that a search of its records had revealed that it possessed one document relating to the legislative history of the CIA's organic statutes which was not publicly available, namely, a stenographic transcript of Hearings held before the House Committee on Expenditures in the Executive Departments on 27 June 1947 (hereinafter "Hearing Transcript"). The Agency stated, however, that the Hearing Transcript had been classified "Secret" by Congress and could be declassified only by that body; it suggested that Holtz request declassification and release of the document from the House of Representatives. There were no further communications between Holtz and the CIA.

On 20 October 1975 plaintiffs Goland and Skidmore notified the CIA that they, like Holtz, were "investigating the authority, organization and administration" of the Agency, and requested "the documents requested by Ms. Holtz' letters." Treating the CIA's failure to respond within ten days as a denial of their request, plaintiffs on 20 November 1975 appealed that denial. On 26 November 1975 the CIA offered to send plaintiffs copies of five previously published hearings and reports, even though these documents were "generally available in the Library of Congress and various depository libraries." With respect to the Hearing Transcript, however, the CIA reiterated its position that the Transcript was a "legislative document under the control of the House of Representatives" which was "classified `Secret'" and to which FOIA did not apply.

J.A. 18.

Under 5 U.S.C. § 552(a)(6)(A)(i) (1976), an agency must respond to an FOIA request within ten working days; under § 552(a)(6)(C), a requester is deemed to have exhausted administrative remedies if the agency fails to comply with this time limit.

J.A. 22. These five documents (65 pages in all) were sent to plaintiffs on 12 January 1976. J.A. 78.

J.A. 22.

On 16 December 1975 Goland and Skidmore wrote the CIA to "elaborate on the basis of [their] appeal," asserting that the Agency's letter of 26 November failed to make clear whether the Transcript and the five published documents accounted for all the material they had requested. In addition, plaintiffs expanded the scope of their request to embrace not only the reports and hearings they had sought originally, but also any "materials which may have been the basis for testimony at hearings" or "materials used by or submitted by the CIA or other Executive Branch sources which are included in [unpublished] reports" on the cited bills. When the CIA failed to respond to this supplemental appeal within 20 working days, plaintiffs filed suit on 28 January 1976.

J.A. 23-24.

J.A. 24, 25.

See 5 U.S.C. § 552(a)(6)(A)(ii) (C) (1976).

On 10 March 1976 the CIA notified plaintiffs' counsel that it had identified two additional documents responsive to plaintiffs' FOIA request which "had not previously been located." The first document was entitled "Statement of Lt. Gen. Hoyt S. Vandenberg, Director of Central Intelligence," delivered before the Senate Armed Services Committee on 29 April 1947. This document was released to plaintiffs in full. The second document was entitled "Statement of the Director of Central Intelligence [Hillenkoetter] Before the House Armed Services Committee [on] 8 April 1948" (hereinafter "Hillenkoetter Statement"). This document was released to plaintiffs with certain portions (about 20% of the total) deleted; the Agency explained that the deleted material was exempt from disclosure under FOIA.

J.A. 129.

II. COURSE OF THE LITIGATION

The complaint sought an injunction directing the CIA to make available for copying all "records requested in plaintiffs' . . . letter" of 20 October 1975, a declaratory judgment holding the CIA's allegedly restrictive definition of "agency records" invalid, and an award of attorneys' fees. On 10 March 1976 plaintiffs filed interrogatories, a request for production of documents, and a notice of deposition to the CIA. Rather than submit to discovery, the CIA on 5 April 1976 filed a motion for summary judgment based on affidavits. The Agency contended that the Hearing Transcript was not an "agency record" but rather a congressional document not subject to FOIA; that both the Transcript and the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 3, relating to matters "specifically exempted from disclosure by statute;" that both the Transcript and the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 1, relating to matters "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy;" that the CIA's search had been complete and there existed no other responsive documents; and that plaintiffs lacked standing to challenge the CIA's definition of "agency records" inasmuch as the Agency had not relied on that definition in processing their FOIA request. Plaintiffs responded to the motion principally on the grounds that discovery was needed to resolve disputed issues of fact.

J.A. 9.

32 C.F.R. § 1900.3(g) (1976). The definition has recently been amended. See 42 Fed.Reg. 24,049 (12 May 1977) (codified at 32 C.F.R. § 1900.3(g) (1977)).

Congress is not an "agency" under FOIA. See 5 U.S.C. § 551(1)(A) (1976).

5 U.S.C. § 552(b)(3) (1976).

5 U.S.C. § 552(b)(1) (1976). These documents were classified "Secret" under Executive Order No. 11652, 3 C.F.R. 678 (1971-75 Compilation).

Judge Hart granted the CIA's motion for summary judgment on 26 May 1976. He found that the Hearing Transcript was a congressional document outside the ambit of FOIA, that the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 1, and that no further discovery was justified since the CIA had "made a full search in good faith." Judge Hart made no findings about plaintiffs' standing to challenge the CIA's definition of agency records or about their request for attorneys' fees. We consider these issues in turn.

Judge Hart's decision, rendered from the bench, is printed at J.A. 187-90.

J.A. 190.

III. ANALYSIS A. The Hearing Transcript.

The FOIA requires that an agency make "agency records" available to the public upon reasonable request. The Act does not define "records" or "agency records." Plaintiffs argue that since the CIA is an "agency" its possession of the Hearing Transcript, without more, renders that document an "agency record" subject to disclosure absent specific exemption. The CIA argues that possession is not enough; it points out that "agency," as defined by the Administrative Procedure Act, "does not include (A) the Congress . . .," and that the Hearing Transcript, regardless of whether it is a "record," is not an " agency record" on the facts of this case. The district court found that the Hearing Transcript was "released to the CIA for limited purposes as a reference document only" and that it "remain[ed] within the control of Congress;" the court concluded that the Transcript was in consequence a "Congressional document," and not an "agency record" within the meaning of FOIA. We agree.

5 U.S.C. § 552(a)(3) (4)(B) (1976).

See U.S. Dept. of Justice, Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23 (1967) [hereinafter Attorney General's FOIA Memorandum].

Brief of Appellants at 40; J.A. 24.

5 U.S.C. § 551(1)(A) (1976).

The CIA also argues that if the Hearing Transcript were an agency record for purposes of § 552(a)(3), it would be exempt from disclosure under FOIA Exemptions 1 and 3. See p. ___ of ___ U.S.App.D.C., p. 344 of 607 F.2d supra. Since we hold that the Hearing Transcript is a Congressional document, we do not consider these arguments.

J.A. 189.

Id.

At the outset, we reject plaintiffs' argument that an agency's possession of a document per se dictates that document's status as an "agency record." We base our conclusion both on precedent and on policy. The precedent is the Tenth Circuit's opinion in Cook v. Willingham, the only decision cited to us or discovered by our own research that is squarely on point. In Cook, a prisoner sought a copy of his presentence investigation report under FOIA. Although the document was physically in the possession of the warden of a United States penitentiary, the Tenth Circuit held the place of possession not controlling. Noting that FOIA "does not apply to `the courts of the United States,'" it concluded that the presentence report, "made for the use of the sentencing court," thereafter "remains in the exclusive control of that court despite any joint utility it may eventually serve." In consequence, the judicial document was "not an agency report and [was] therefore not available to the public" under FOIA. Since the FOIA's exemptions for Congress and the federal courts are in pari materia, Cook is firm support for the conclusion that the Hearing Transcript, a congressional document, is not "an agency record" here.

In support of this argument, plaintiffs cite 44 U.S.C.A. § 3301 (West Supp. 1977), an earlier version of which is quoted in the Attorney General's FOIA Memorandum, supra note 24 at 23. Section 3301 defines "records" for purposes of the management, disposal, and archival preservation of Government documents by the Administrator of General Services; it states that "[a]s used in [chapter 33 of 44 U.S.C.], `records' includes all . . . papers . . . made or received by an agency of the United States Government . . . appropriate for preservation by that agency . . . ." (emphasis added). This definition is hardly controlling here. In enacting legislation on management and disposal of Government records, Congress was concerned with preserving an "[a]ccurate and complete documentation of the policies and transactions of the Federal Government." 44 U.S.C.A. § 2902(1) (West Supp. 1977). With this objective in mind, Congress might well regard the Hearing Transcript as a "record . . . appropriate for preservation" by the CIA, since the Transcript contains information regarding "basic elements of [the CIA's] intelligence methodology" and details of the CIA's "structure and disposition of functions." Affidavit of CIA Legislative Counsel George L. Cary, J.A. 80 [hereinafter "Cary Affidavit"]. The sole result of the Hearing Transcript's being deemed an "agency record" under § 3301 by virtue of its receipt by the CIA is that the Transcript could not thereafter be destroyed except in conformity with the procedure Congress prescribed — a result plainly harmonious with Congress' objectives. See 44 U.S.C. § 3314 (1970). Congress' objectives in the FOIA, of course, were rather different. In the interests of secrecy, Congress exempted itself from the Act's disclosure requirements; yet the result of the Hearing Transcript's being deemed an "agency record" under § 552(a)(3) by virtue of its receipt by the CIA is that the Transcript's release could be required, regardless of Congress' wishes, unless the CIA could prove a specific exemption. Given this difference in result, we doubt Congress would agree that an "agency record" under 44 U.S.C. § 3301 is an "agency record" under 5 U.S.C. § 552(a)(3). Indeed, the two titles define "agency" differently. Compare 5 U.S.C. § 551(1)(A) (B) (1976) ("agency" excludes Congress and the federal courts) with 44 U.S.C.A. § 2901(13) (West Supp. 1977), cross-referring to 40 U.S.C. § 472(b) (1970) ("agency" includes not only executive agencies, but also "any establishment in the legislative or judicial branch," with exceptions). Congress, in any event, has had ample opportunities to make the § 3301 definition of "records" applicable in § 552(a)(3) of FOIA, but has never done so. Cf. 44 U.S.C.A. § 2906(a)(3) (West Supp. 1977) (stating that under certain circumstances "records" under § 3301 shall be deemed records for purposes of 5 U.S.C. § 552a). One recent commentator has stated that § 3301, although it contains the "only statutory definition of "record,'" is "an inappropriate answer to the definitional issue." J.T. O'Reilly, Federal Information Disclosure, ¶ 5.03 n. 1 (1977).
Plaintiffs point out that the § 3301 definition of records was quoted in the Attorney General's FOIA Memorandum supra note 24 at 23. We do not see how this helps plaintiffs' case. The Attorney General noted that the FOIA did not define "records," then quoted the only available statutory definition of the term for what it was worth. He would have been remiss in not doing so. Yet his citation of the definition does not give it any greater extrapolative force than it inherently possesses. The Attorney General surely did not focus on the words "or received by," which plaintiffs italicize and which are relevant to our case. Indeed, the Memorandum elsewhere suggests that an agency's possession of a document does not per se render the document an "agency record" which the possessing agency must release. See note 46 infra.

400 F.2d 885 (10th Cir. 1968) (per curiam), followed in United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir. 1976).

400 F.2d at 885, citing 5 U.S.C. § 551(1)(B) (1976).

Id.

Id. at 886. See United Broadcasting Co., 58 F.C.C.2d 1243, 1245 (1975) (FCC withheld probationary report because "probationary report, like a presentencing report, properly belongs to the Court for which it was made, and is therefore not capable of release under FOIA," citing Cook).

See 5 U.S.C. § 551(1)(A) (B) (1976).

This conclusion likewise finds firm support in policy. Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, longstanding practice, and current congressional rules. Yet Congress exercises oversight authority over the various federal agencies, and thus has an undoubted interest in exchanging documents with those agencies to facilitate their proper functioning in accordance with Congress' originating intent. If plaintiffs' argument were accepted, Congress would be forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role. We decline to confront Congress with this dilemma absent a more convincing showing of self-abnegating congressional intent. It may be assumed that plaintiffs could not easily win release of the Hearing Transcript from the House of Representatives; we will not permit them to do indirectly what they cannot do directly because of the fortuity of the Transcript's location.

U.S. Const. art. I, § 5: "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . .."

See Nixon v. Sirica, 159 U.S.App.D.C. 58, 130-31, 487 F.2d 700, 772-73 (1973) (Wilkey, J., dissenting).

E.g., H.R. Rule XI(2)(k)(7), reprinted in H.R. Doc. No. 416, 93d Cong., 2 Sess. 427 (1975): "No evidence or testimony taken in executive session may be released or used in public sessions without the consent of the committee."

See Letter from Deputy Att'y Gen. Harold R. Tyler, Jr. to Hon. Bella S. Abzug, 19 Feb. 1976, quoted in J.A. 60 (Justice Dept. declined to release confidential House report lest "communications and consultations between coequal branches" of government be stifled).

For reasons both of precedent and policy, then, we believe that plaintiffs' litmus test must be rejected. An agency's possession of a document, standing alone, no more dictates that it is an "agency record" than the congressional origins of a document, standing alone, dictate that it is not. Whether a congressionally generated document has become an agency record, rather, depends on whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides.

The document at issue here is a photostatic reproduction of a stenographic transcript of a hearing held before the House Committee on Expenditures in the Executive Departments on 27 June 1947, entitled "H.R. 2319 — Unification of the Armed Forces." The Committee was sitting in Executive Session. As the first order of business, the Chairman swore the stenographer and typist to secrecy. The transcript contains discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA's structure and disposition of functions. When received by the CIA, the Transcript bore the typewritten marking "Secret" on its interior cover page; this marking appears to have been appended at the time the Transcript was made. The typewritten mark "Secret" appears again on the first page of the text of the Transcript. The CIA retains a copy of the Transcript for internal reference purposes only, to be used in conjunction with legislation concerning the Agency and its operations.

Cary Affidavit, supra note 30, J.A. 80.

J.A. 80-81. Because the CIA methodology and disposition of functions described in the Transcript are still operable, and because disclosure of the information could damage U.S. relations with friendly foreign governments, the CIA itself separately classified portions of the Transcript "Secret" pursuant to Executive Order 11652. See note 20 supra. We do not consider whether this classification was proper. See note 27 supra.

Cary Affidavit, supra note 30, J.A. 80.

Id. at 79-80.

Given these facts, we conclude that the Hearing Transcript remains under the control of and continues to be the property of the House of Representatives. We base our conclusion both on the circumstances attending the document's generation and the conditions attached to its possession by the CIA. The facts that the Committee met in executive session and that the Transcript was denominated "Secret" plainly evidence a Congressional intent to maintain Congressional control over the document's confidentiality. The fact that the CIA retains the Transcript solely for internal reference purposes indicates that the document is in no meaningful sense the property of the CIA; the Agency is not free to dispose of the Transcript as it wills, but holds the document, as it were, as a "trustee" for Congress. Under these circumstances, the decision to make the transcript public should be made by the originating body, not by the recipient agency.

Cf. S.Rep. No. 5, 81st Cong., 1st Sess. ("First Annual Report of the Investigations Subcomm. of the Comm. on Expenditures in the Executive Departments") 3 (1949): "Executive hearings were . . . utilized in cases involving national security and in other instances when it was determined that public disclosure might be detrimental to the public interest."

Plaintiffs point out that the predecessor of current House Rule XI(2)(k)(7), supra note 38, governing secrecy of testimony taken in executive session, was not enacted until 1955. Brief at 41. See H.R.Doc. No. 416, supra note 38 at 427. It is clear, however, that the Rule simply formalized longstanding practice. Cf., e.g., S.Rep. No. 5, supra note 44 at 3-4: "The subcommittee calls attention to the following rules of procedure which it adopted and which it has uniformly followed: . . . (5) All testimony taken in executive hearings shall be secret and will not be released or used in public hearings without the approval of a majority of the subcommittee." Even without the benefit of a general Rule, moreover, the transcript on its face manifests the indicia of Congress' intent to maintain secrecy. Since it is Congress' intent to maintain secrecy, and not Congress' conformance with the procedural niceties of classification, that makes the Transcript a "Congressional document," plaintiffs' arguments that discovery is required as to the identity of the classifier, the date on which the document was classified, etc., are irrelevant in reaching a decision here.

Cf. Attorney General's FOIA Memorandum, supra note 24 at 24:

Where a record is requested which is of concern to more than one agency, the request should be referred to the agency whose interest in the record is paramount, and that agency should make the decision to disclose or withhold . . .. Where a record requested from an agency is the exclusive concern of another agency, the request should be referred to that other agency.

This rule was followed in Friendly Broadcasting Co., 55 F.C.C.2d 775, 775-76 (1975) (where FBI Reports were loaned to FCC solely for internal reference purposes, Reports were "property of the Federal Bureau of Investigation" and FBI, "as the originator of the Reports, . . . is the agency to which the request should be addressed" under FOIA).

We hold, therefore, that the Hearing Transcript is not an "agency record" but a congressional document to which FOIA does not apply. We reach this conclusion because we believe that on all the facts of the case Congress' intent to retain control of the document is clear. Other cases will arise where this intent is less plain. We leave those cases for another day.

Plaintiffs argue that even if the Transcript as a whole is a "Congressional document," those portions originating with the CIA are producible as "'reasonably segregable portion[s]'" with the "comments of members of Congress . . . deleted if necessary as `Congressional materials.'" Brief at 42 n. 15, citing 5 U.S.C. § 552(b) (last sentence) (1976). This argument is frivolous. Congress met in executive session, and marked the Transcript "Secret," not only to protect its members' questions, but to protect its witnesses' answers. The cited provision from § 552(b), in any event, requires segregation and disclosure of non-exempt portions of agency records; since we hold that the Hearing Transcript is not an agency record, this provision has no application here.

In ascertaining whether a record in the possession of an agency is nonetheless a congressional document, a court will of course accord due weight to the factors that influence us in this case, including (1) Congress' clear intent to exempt congressional documents from disclosure under FOIA; (2) Congress' clear prerogative to prevent disclosure of its own confidential materials; and (3) the danger of inhibiting the legislative and judicial branches from making their records available to the executive branch.
The dissent argues that this test, and the conclusion it produces, prove too much: if the Hearing Transcript is a Congressional document, so also must the Hillenkoetter Statement be, a reductio our colleague evidently views as ad absurdum. See diss. op. at ___ of 197 U.S.App.D.C., at 361 of 607 F.2d. Since the CIA has never contended that the Hillenkoetter Statement is a Congressional document — since, indeed, the CIA has acted inconsistently with any such contention by declassifying and releasing 80% of the document — we see no need to consider this question. We might note, however, that between the Hillenkoetter Statement and the Hearing Transcript substantial differences lie. The former is a statement by a CIA official prepared by the CIA; we do not know the circumstances of its delivery in Congress, and it was classified "Secret," not by Congress, but by the CIA. The latter is a transcript of colloquy between Congressmen and CIA witnesses; it was created in Congress under circumstances manifesting a plain Congressional desire for secrecy, and it initially was labeled "Secret," not by the CIA, but by Congress. These distinctions are not, as our dissenting colleague says, a matter of paper and ink. The Transcript originated in Congress and remains a congressional document because it bears clear indicia of a congressional purpose to ensure secrecy; the Statement originated in the CIA and bears no indicia of any congressional purpose to ensure secrecy. It is these indicia of Congress' continuing control that are dispositive of a document's "congressional" status.
The dissent argues that "`[c]ontrol' in this sense goes to the question whether a document is exempt from disclosure — not to whether it is an `agency record.'" Diss. op. at ___ of 197 U.S.App.D.C., at 360 of 607 F.2d. This argument seems to mean that Congress can exercise "control" over secret documents that leave its possession only by enacting FOIA exemptions. We disagree. Congress has broad powers to keep its documents secret; when Congress transfers secret documents to an agency, for a limited purpose and on condition of secrecy, we see no reason to think it thereby waives its own prerogatives of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it.

B. The Hillenkoetter Statement.

The Hillenkoetter Statement is concededly an "agency record." Although the entire 113-page document was originally classified "Secret," the CIA has declassified approximately 80% of it and released those portions to plaintiffs. The Agency contends that the deleted portions are exempt from disclosure under FOIA Exemptions 1 and 3. The district court held this material exempt, relying on Exemption 1. We agree, but base our holding instead on Exemption 3, without in any way impugning the correctness of Judge Hart's conclusion.

The deleted portions of the Statement were classified "Secret" pursuant to Executive Order 11652 "in the interest of national defense or foreign policy." See p. ___ of 197 U.S.App. D.C., p. 344 of 607 F.2d note 20 supra.

Although "inquiries into the applicability of the two exemptions may tend to merge," Phillippi v. CIA, 178 U.S.App.D.C. 243, 250, 546 F.2d 1009, 1016 n. 14 (1976), Exemption 3 may of course be invoked independently of Exemption 1. See Weissman v. CIA, 184 U.S.App.D.C. 117, 123, 565 F.2d 692, 698 (1977); Marks v. CIA, 426 F. Supp. 708, 710-11 n. 5 (D.D.C. 1977), appeal docketed, No. 77-1225 (D.C. Cir. 3 March 1977); J. T. O'Reilly, supra note 30, at ¶ 13.07. Whether the deleted portions of the Hillenkoetter Statement were properly withheld is perhaps more clearly and briefly stated under Exemption 3 than under Exemption 1, hence we reach Judge Hart's conclusion by a different path.

As originally enacted, FOIA provided that the Act's disclosure requirements "[do] not apply to matters that are — . . . (3) specifically exempted from disclosure by statute." Two statutes are relevant to an Exemption 3 claim by the CIA. A proviso to 50 U.S.C. § 403(d)(3) states that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." Section 403g of the same title provides that, "in order further to implement" this proviso, "the Agency shall be exempted from . . . the provisions of any . . . law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." In Weissman v. CIA, this Court squarely held that "both § 403(d)(3) and § 403g are precisely the type of statutes comprehended by exemption (b)(3)." This conclusion derived incontrovertible support from legislative history and was unanimously adopted by other courts.

5 U.S.C. § 552(b)(3) (1970).

National Security Act of 1947, ch. 343, tit. I, § 102, 61 Stat. 497 (presently codified at 50 U.S.C. § 403(d)(3) (1970)).

CIA Act of 1949, ch. 227, § 7, 63 Stat. 211 (presently codified at 50 U.S.C. § 403g (1970)).

184 U.S.App.D.C. 117, 565 F.2d 692 (1977).

Id. at 119, 565 F.2d at 694. See Phillippi v. CIA, 178 U.S.App.D.C. 243, 249 n. 19, 546 F.2d 1009, 1015 n. 14 (1976).

S.Rep. No. 93-854, 93d Cong., 2d Sess. 16 (1974) ("Intelligence Sources and Methods ( 50 U.S.C. § 403(d)(3) and (g)) . . . have been exempted from public inspection under section 552(b)(3) . . .."); S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Conference Report) (same), U.S. Code Cong. Admin.News 1974, p. 6267.

E.g., Richardson v. Spahr, 416 F. Supp. 752, 753 (W.D.Pa.), aff'd, 547 F.2d 1163 (3d Cir. 1976) (§§ 403(d)(3) 403g are both Exemption 3 statutes); Marks v. CIA, 426 F. Supp. 708, 710-11 (D.D.C. 1976), appeal docketed, No. 77-1225 (D.C. Cir. 3 March 1977) (same); Baker v. CIA, 425 F. Supp. 633, 635 (D.D.C. 1977), appeal docketed, No. 77-1228, 188 U.S.App.D.C. 401, 580 F.2d 664 (D.C. Cir. 3 March 1977) (same).

In 1976 Congress amended Exemption 3 in order to "eliminate the gap created in [FOIA]" by the Supreme Court's decision in FAA Administrator v. Robertson. Robertson held that a statute giving an agency broad discretion to withhold information "in the interest of the public" qualified as an Exemption 3 statute. Congress amended Exemption 3 to provide that information shall be deemed specifically exempted from disclosure by statute only if such statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." There is nothing on the face of amended Exemption 3, or in its legislative history, to suggest that Congress in 1976 intended to upset the well-established Exemption 3 status of the CIA's protective statutes. Both § 403(d)(3) and § 403g "refer to particular types of matters to be withheld" — namely, information respecting intelligence sources and methods. Rep. Abzug, the amendment's primary sponsor in the House, explicitly stated on the floor that § 403g was one of the statutes intended to qualify under the new Exemption 3. The only courts to consider the issue have held that the amendment left the Exemption 3 status of §§ 403(d)(3) and 403g unimpaired. Scholarly commentators have reached the same conclusion.

H.R. Rep. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23 (1976), U.S. Code Cong. Admin.News 1976, p. 2183, citing 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). The revision in Exemption 3 represented a conforming amendment to 5 U.S.C. § 552b(c)(3) (1976), part of the Government in the Sunshine Act, Pub.L. No. 94-409, § 3(a), 90 Stat. 1241 (1976).

Robertson involved § 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504 (1970), which provides in pertinent part: "Whenever [any person objects to public disclosure of information received by the FAA], the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public."

Act of 13 Sept. 1976, Pub.L. No. 94-409, § 5(b), 90 Stat. 1247 (presently codified at 5 U.S.C. § 552(b)(3) (1976)). The amendment became effective 12 March 1977, 180 days after its enactment. See Pub.L. No. 94-409, § 6.

122 Cong. Rec. H9260 (daily ed. 31 Aug. 1976):

I have been asked whether 50 U.S.C. [§] 403g, a statute relating to CIA exemption from laws such as the Sunshine Act and the Freedom of Information Act, comes within the third exemption as recommended by the conference. I have examined section 403g and believe that it does come within the exemption.

The legislative history cites, by way of example, in addition to the statute involved in Robertson, supra note 59, several statutes that would not qualify under amended Exemption 3. See H.R. Rep. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23 (1976), citing 18 U.S.C. § 1905 (1970); S.Rep. No. 94-1178, 94th Cong., 2d Sess. 14 (1976) (Conference Report), citing 42 U.S.C. § 1306 (Supp. V 1975). These statutes are of the oceanic variety involved in Robertson and are in marked contrast to the CIA statutes involved here. 42 U.S.C. § 1306 provides that no disclosure of any information obtained at any time by or from the Departments of HEW or Labor shall be made except as relevant regulations prescribe. 18 U.S.C. § 1905 prohibits "[d]isclosure of confidential information generally" by any officer or employee of the United States "in any manner or to any extent not authorized by law."

Fonda v. CIA, 434 F. Supp. 498, 503-04 n. 6 (D.D.C. 1977), appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977); Hayden v. CIA, No. 76-284, slip op. at 3-4 (D.D.C. 15 Apr. 1977), appeal docketed, No. 77-1894 (D.C. Cir. 30 Sept. 1977).

See J. T. O'Reilly, supra note 30, at ¶ 13.07 ("mandatory" nature of CIA statutes "bars disclosure under either the original or revised versions of exemption (b)(3)"); Note, The Effect of the 1976 Amendment to Exemption Three of the Freedom of Information Act, 76 Colum.L. Rev. 1029, 1044 n. 91 (1976) (§ 403g qualifies under revised Exemption 3 because it specifies the "particular types of matters to be withheld").

Having decided that § 403(d)(3) and § 403g remain qualifying statutes under amended Exemption 3, we must determine whether the deleted portions of the Hillenkoetter Statement fall within these statutes' protective compass. A court may be able to make such a determination on the basis of affidavits, without the need for discovery or in camera inspection. Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage.

Congress has instructed the courts to accord "substantial weight" to agency affidavits in national security cases. S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Conference Report); 120 Cong.Rec. 36,870 (1974) (remarks of Sen. Muskie); Weissman v. CIA, 184 U.S.App.D.C. 117, 122 n. 10, 565 F.2d 692, 697 n. 10 (1977). A court has discretion to conduct in camera inspection under 5 U.S.C. § 552(a)(4)(B) (1976), but the legislative history makes clear that in camera inspection should be ordered only after an agency has been given "the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure." S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974) (Conference Report), U.S. Code Cong. Admin.News 1974, p. 6287. The description contained in the affidavits must be sufficiently detailed to show that the contested matter "logically falls into the category of the exemption indicated." Weissman, 184 U.S.App.D.C. at 122, 565 F.2d at 697.

See EPA v. Mink, 410 U.S. 73, 95 n.[*] 93 S.Ct. 827, 840, 35 L.Ed.2d 119 (1973) (Stewart, J., concurring) (under Exemption 3 "the only `matter' to be determined in a district court's de novo inquiry is the factual existence of [a relevant] statute, regardless of how unwise, self-protective, or inadvertent the enactment might be"); J. T. O'Reilly, supra note 30, at ¶ 13.07. In Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), we noted the need of techniques to test for the presence in a withheld document of segregable, nonexempt matter, lest an agency be able to "sweep disclosable material under a blanket allegation of exemption." Id., at 347 n. 21, 484 F.2d at 827 n. 21. In this case, the need for discovery or in camera inspection to test for the presence of segregable, non-exempt material is considerably diminished: the CIA's claims of exemption are by no means "blanket" or "sweeping," and the Agency has already segregated and released 80% of the Hillenkoetter Statement to plaintiffs.

In this case, the issue for decision is whether the CIA has shown by affidavit that release of the Hillenkoetter Statement in its entirety would reveal "intelligence sources and methods," e. g., by revealing the "organization" or "functions" of CIA personnel. According to an affidavit submitted by CIA Legislative Counsel George L. Cary, the deleted portions of the Hillenkoetter Statement contain detailed descriptions of (1) "intelligence collection and operational devices . . . still utilized"; (2) "methods of procurement and supply . . . unique to the Intelligence Community" which "are currently utilized"; (3) "basic concepts of intelligence methodology" of which "the essential elements remain viable"; (4) "specific clandestine intelligence operations," including the "names [of] the foreign countries involved"; and (5) "certain intelligence methodologies of a friendly foreign government." This affidavit has not been challenged. It demonstrates, in nonconclusory and detailed fashion, that the deleted material describes "intelligence . . . methods," including the "functions" and "organization" of CIA personnel. We hold, therefore, that the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 3.

See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 346, 484 F.2d 820, 826 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

Section 403g does not of course license the Agency "to refuse to provide any information at all about anything it does." Phillippi v. CIA, 178 U.S.App.D.C. 243, 249 n. 14, 546 F.2d 1009, 1015 n. 14 (1976). In this case, disclosure of the "personnel" material at issue would lead to disclosure of intelligence sources and methods. But see Baker v. CIA, 425 F. Supp. 633, 635-36 (D.D.C. 1977), appeal pending, No. 77-1228 (D.C. Cir. 1978) (§ 403g personnel matter exempt under Exemption 3 even absent proof that disclosure would in fact compromise intelligence sources and methods).

The dissent would deny summary judgment on the Exemption 3 status of the Hillenkoetter Statement because the CIA did not furnish a Vaughn v. Rosen index of that document. This argument exalts form over substance. Vaughn involved a request for numerous documents running to "many hundreds of pages," and the Government made a blanket claim that "the documents, as a whole, [were] exempt under three distinct exemptions." We found it "preposterous to contend that all of the information [was] equally exempt under all of the alleged exemptions," and found "an adequate indexing system" necessary owing to our "inability to determine which exemptions appl[ied] to what portions of the information." The present case involves 23 pages of deletions from one document. The CIA's affidavit lists the deletions; provides a "relatively detailed analysis" of the material deleted; makes clear which exemptions are claimed for the deletions (Exemptions 1 3); and explains why the deleted material fits within the exemptions claimed ( i.e., how the deletions relate to "national security" and "intelligence sources and methods"). The CIA's justifications, we think, could not have been much more detailed without "compromis[ing] the secret nature of the information." Although the Agency did not tender its analysis in the form of an "index," it satisfied the "detailed justification," "specificity," and "separation" requirements whose satisfaction the Vaughn index was meant to ensure. Although we do not retreat in the least from our belief that an index is of great assistance to requesters and courts in appropriate cases, common sense suggests that an index was unnecessary for the 23 pages that were so specifically described and justified here.

See diss. op. at ___-___ ___-___ of 197 U.S.App.D.C., at 356-358 364-365 of 607 F.2d, citing 157 U.S.App.D.C. 340, 346-48, 484 F.2d 820, 826-28 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

See 157 U.S.App.D.C. at 345, 347, 484 F.2d at 825, 827.

Id. at 345-348, 347 n. 22, 484 F.2d at 827-28, 827 n. 22.

Id. at 346, 484 F.2d at 826. See Maroscia v. Levi, 569 F.2d 1000, 1003 (7th Cir. 1977) (per curiam) (upholding summary judgment on Exemption 1 status of CIA document, without in camera inspection, on basis of affidavit describing document "in some detail, indicating the circumstances and the sensitivity of the information," and explaining "[t]he potential harm resulting from disclosure of [the] document").

Vaughn v. Rosen, 157 U.S.App.D.C. at 346-47, 484 F.2d at 826-27.

C. The Thoroughness of the CIA's Search for Responsive Documents

The CIA asserts that exhaustive searches of its files have succeeded in locating eight, and only eight, documents that are responsive to plaintiffs' FOIA request. Plaintiffs contend that discovery is needed to test whether the CIA's search was complete. The district court awarded summary judgment in favor of the CIA, finding that "the CIA ha[d] made a full search in good faith and that no further discovery [was] justified." We agree.

These documents are the five published hearings (released in full), the Vandenberg Statement (released in full), the Hillenkoetter Statement (withheld in part), and the Hearing Transcript (withheld in full). See pp. of 197 U.S.App.D.C., pp. 343-344 of 607 F.2d supra.

J.A. 190.

In order to prevail on an FOIA motion for summary judgment, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." In determining whether an agency has met this burden of proof, the trial judge may rely on affidavits. Congress has instructed the courts to accord "substantial weight" to agency affidavits in national security cases, and these affidavits are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt. The agency's affidavits, naturally, must be "relatively detailed" and nonconclusory and must be submitted in good faith. But if these requirements are met, the district judge has discretion to forgo discovery and award summary judgment on the basis of affidavits.

National Cable Television Ass'n, Inc. v. FCC, 156 U.S.App.D.C. 91, 94, 479 F.2d 183, 186 (1973).

S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Conference Report); 120 Cong.Rec. 36,870 (1974) (remarks of Sen. Muskie). See EPA v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

Vaughn v. Rosen, 157 U.S.App.D.C. 340, 346, 484 F.2d 820, 826 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

See Nolen v. Rumsfeld, 535 F.2d 890, 891-92 (5th Cir. 1976) (granting summary judgment upon agency's representations "in candor and in good faith" that all responsive documents were made available to plaintiff); Association of Nat'l Advertisers, Inc. v. FTC, 38 Ad.L.2d 643, 644 (D.D.C. 1 April 1976) (where record indicates that agency search was "reasonably thorough," discovery may be limited by court; to justify discovery where FTC "has already stated under oath that the search was Commission-wide and complete, . . . [p]laintiff must demonstrate some substantial discrepancy between the defendants' actions and words . . ."); Exxon Corp. v. FTC, 384 F. Supp. 755, 759-60 (D.D.C. 1974), remanded, 174 U.S.App.D.C. 77, 527 F.2d 1386 (1976), dismissed, No. 73-1928 (D.D.C. 28 Feb. 1977) (limiting discovery where affidavits demonstrated adequacy of search).

In support of its motion for summary judgment, the CIA submitted affidavits executed by Gene F. Wilson, the Agency's Information and Privacy Coordinator. Wilson stated that in response to plaintiffs' initial request for "legislative history" he "caused a search to be made for all printed hearings, transcripts of hearings, [and] printed reports issued by Committees of the House, Committees of the Senate or Conference Committees." This search produced five published reports and the Hearing Transcript. Subsequently, plaintiffs expanded their request to include all documents "which may have been used to prepare for Congressional testimony." Wilson then conducted a "further exhaustive search" for "copies of prepared testimony or statements presented in response to congressional consideration of the legislation" cited by plaintiffs. In this search, the CIA "interpreted [plaintiffs'] request broadly enough to ensure that [it] would locate all documents within the scope of the request," and "searched and reviewed all files which might contain [responsive] documents." This search produced the Vandenberg and Hillenkoetter Statements, but "failed to locate any additional records which could be considered responsive to plaintiffs' request." Since the CIA has no indices or compendiums identifying records as "preparatory documents for congressional testimony," any additional records of this description, if they exist, could be found only by "a page-by-page search" through the "84,000 cubic feet of documents in the [CIA] Records Center." Even if such a page-by-page search were undertaken, it would be "impossible to determine which documents, if any, were in fact used to prepare for congressional testimony on the legislation cited by plaintiffs."

J.A. 174.

J.A. 106. See pp. ___-___ of 197 U.S.App.D.C., pp. 343-344 of 607 F.2d supra.

J.A. 78, 174.

J.A. 78.

J.A. 174.

J.A. 175.

Id.

We think that Wilson's sworn affidavits on their face are plainly adequate to demonstrate the thoroughness of the CIA's search for responsive documents. The affidavits give detailed descriptions of the searches undertaken, and a detailed explanation of why further searches would be unreasonably burdensome. Plaintiffs argue, however, that even if Wilson's affidavits are otherwise sufficient to support summary judgment in favor of the CIA, discovery is required here because there is reason to doubt the Agency's good faith.

First, plaintiffs note that hearings occurred on the CIA's enabling statutes for which no published transcripts exist, and argue that unpublished transcripts of these hearings, as well as CIA back-up documents prepared for use at these hearings, " must exist." Although appeals to common sense are not altogether to be condemned, plaintiffs' argument is unpersuasive here. Even if we assume that the documents plaintiffs posit were created, there is no reason to believe that the documents, thirty years later, still exist, or, if they exist, that they are in the possession of the CIA. Moreover, even if the documents do exist and the CIA does have them, the Agency's good faith would not be impugned unless there were some reason to believe that the supposed documents could be located without an unreasonably burdensome search. It is well established that an agency is not "required to reorganize [its] files in response to [a plaintiff's] request in the form in which it was made," and that if an agency has not previously segregated the requested class of records production may be required only "where the agency [can] identify that material with reasonable effort." Wilson's affidavits plainly show that the effort required to locate the hypothesized "back-up" documents would be unreasonable here.

J.A. 110 (emphasis in original). See Brief of Appellants at 26-27.

Irons v. Schuyler, 151 U.S.App.D.C. 23, 30, 465 F.2d 608, 615, cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972).

National Cable Television Ass'n, Inc. v. FCC, 156 U.S.App.D.C. 91, 100, 479 F.2d 183, 192 (1973). See H.R. Rep. No. 93-876, 93d Cong., 2d Sess. 5-6 (1974), U.S. Code Cong. Admin. News 1974, p. 6271 (description of records requested must enable "a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort").

Second, plaintiffs argue that the Church Committee Report refers to several documents that "appear to be within the scope of plaintiffs' FOIA request . . ., and copies of which could reasonably be expected to be in the possession of the CIA, but which defendants have neither identified or produced . . .." This argument is similarly unpersuasive. In their expanded request for "legislative history," plaintiffs sought access to Congressional reports and hearings on specific bills, and CIA materials that may have been "the basis for testimony at hearings" or "included in . . . reports" on those bills. Fifteen of the seventeen documents plaintiffs cite from the Church Committee Report lie unmistakably outside the scope of their FOIA request. The two remaining documents are transcripts of Congressional hearings in executive session. In his affidavit, Wilson stated that these documents, "if they exist, are not held by the [CIA]." Since the transcripts are Congressional materials, and since there is no indication in the Church Committee Report that the transcripts were received from or returned to the CIA, there is no reason to question the good faith of Wilson's asseveration.

Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, book 1, 94th Cong., 2d Sess. (1976) [hereinafter "Church Committee Report" or "Report"].

J.A. 178.

In their Brief at 21-23 n. 7, plaintiffs refer to the following documents:
(a) Two memoranda from Wm. J. Donovan to the President, dated 1941 and 1944 (cited in Report at 481 n. 24 482 n. 28). These documents antedate by at least three years the legislation cited by plaintiffs; neither memorandum discusses any legislation whatever, nor was either prepared for testimony on legislation. See Wilson Affidavit, J.A. 183.
(b) Three memoranda from the CIA General Counsel to the Director, dated 1947-49 (cited in Report, e.g., at 132 n. 19, 72 n. 7 492 n. 70). These documents are internal CIA memoranda which were not prepared for testimony on the cited legislation and were in no way used in the legislative process. See Wilson Affidavit, J.A. 183.
(c) Three transcripts of Congressional testimony, dated 1975 (cited in Report, e.g., at 141 n. 1, 133 n. 27 483 n. 32). These documents postdate by 26 years the legislation cited by plaintiffs; the testimony was not given in hearings on that legislation.
(d) Three internal CIA memoranda, dated 1961-74, and one memorandum prepared by the Justice Dept., dated 1962 (cited in Report, e.g., at 128 n. 1a, 133 n. 25, 478 n. 10 133 n. 26). These documents postdate by 13 years the legislation cited by plaintiffs; none of the memoranda was prepared for testimony on that legislation. See Wilson Affidavit, J.A. 183.
(e) Three draft legislative histories of the CIA prepared by the CIA Legislative Counsel's Office, dated 1967 (cited in Report, e.g., at 71 n. 5 480 n. 19). These documents postdate by 18 years the legislation cited by plaintiffs; none constitutes a report or hearings on that legislation and none was prepared for testimony on that legislation. See Wilson Affidavit, J.A. 183.

Hearings before the Senate Armed Services Comm. on S. 758 (1947), Hearings before the House Comm. on Expenditures in the Executive Departments on H.R. 2139 (1947) (cited in Report, e.g., at 72 n. 6). The Hearing Transcript identified by the CIA contains some of the testimony taken at the House hearings. Plaintiffs seek, and the CIA denies possession of, transcripts of the remainder of the testimony taken at those hearings.

J.A. 183.

The Church Committee Report cites only two documents that are said to be "on file at the CIA." The first is the "Statement of the Director of Central Intelligence [Hillenkoetter] Before the House Armed Services Committee [on] 8 April 1948" (cited in Report at 494 n. 74). This is the "Hillenkoetter Statement" which the CIA identified and for the most part released. The second is so-called "Testimony of Gen. Hoyt S. Vandenberg before the House Armed Services Committee Hearing on H.R. 5871, 4/8/48" (cited in Report at 495 n. 80). The CIA at oral argument denied possession of this document. We believe that the document in all probability does not exist. According to the Congressional Record Daily Digest, the only CIA officials to testify on H.R. 5871 before the House Armed Services Committee on 8 April 1948 were Hillenkoetter and Walter Pforzheimer. 94 Cong.Rec. D242 (1948). The error in the Church Committee Report seems easily explicable. The transcript of Hillenkoetter's 8 April 1948 testimony was entitled simply "Statement of the Director of Central Intelligence." Hillenkoetter was Director in 1948, and Vandenberg was Director in 1947. Apparently, the report wrongly attributed the 8 April 1948 statement of the unnamed CIA Director to Hillenkoetter's predecessor.

Third, plaintiffs argue that the CIA's "pattern of obfuscation and delay" in dealing with them signals the Agency's mala fides. The Agency, they say, first denied having any responsive documents, then found some, then found some more: these "inconsistent positions" and this piecemeal disclosure are said to imply bad faith. We take a different view of the facts. Sara Holtz originally requested "legislative history," defined as Congressional hearings and reports; the CIA not unnaturally directed her to the Library of Congress. When Holtz replied that she wanted unpublished hearings and reports, the CIA identified the Hearing Transcript. When Goland and Skidmore said that they wanted not only hearings and reports, but Executive Branch back-up documents, the CIA identified the Vandenberg and Hillenkoetter Statements. The Agency's "piecemeal" pattern of disclosure followed faithfully the piecemeal pattern of requests, and thus here indicated, if anything, good faith rather than bad; indeed, this Court held as much in Weissman v. CIA. The Agency's responses were not always timely; but in view of the well-publicized problems created by the statute's 10-and 20-day time limits for processing FOIA requests and appeals, the CIA's delay alone cannot be said to indicate an absence of good faith.

184 U.S.App.D.C. at 123, 565 F.2d at 698 (footnote omitted):

The CIA dealt with the instant request in a conscientious manner. It disclosed much material, it released additional material as the result of an administrative appeal, and it came forward with newly discovered documents as located. Agency documents have been released to plaintiff-appellant on four separate occasions.

See Fonda v. CIA, 434 F. Supp. at 502, appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977): "The CIA dealt with plaintiff's request in a conscientious manner. It disclosed much material and it came forward with newly discovered documents as located. . . ."

See J.T. O'Reilly, supra note 30, at ¶ 7.02.

The dissent, while not seriously questioning the CIA's good faith, says that discovery is needed in any event to ascertain whether the CIA personnel conducting the search used an "underinclusive" definition of "legislative history." We disagree. The CIA personnel conducting the search evidently used the definition of "legislative history" that plaintiffs gave them, namely, "hearings, reports, and Executive Branch back-up documents." That this is so is suggested by the fact that the CIA's search produced hearings, reports, and Executive Branch backup documents. Nor do we think discovery was necessary to enable plaintiffs "to reformulate their request to eliminate confusion and the possibility of future lawsuits." "Legislative history" admittedly is not a term whose meaning can be nicely cabined within bright lines; but it is the term plaintiffs used, and if any ambiguity was introduced thereby plaintiffs must reap what they have sown. It would be bizarre indeed if a plaintiff, simply by employing ambiguous language in his FOIA request, could assure himself of potentially harassing discovery for the purpose of dispelling the confusion he had engendered.

See diss. op. at ___ of 197 U.S.App.D.C., at 366 of 607 F.2d.

See id. at ___, at 366 of 607 F.2d.

We hold, therefore, that plaintiffs have made no showing of CIA bad faith sufficient to impugn the Wilson affidavit, which on its face suffices to demonstrate that the CIA's search for responsive documents was complete. For this reason, the district court's grant of summary judgment without discovery was within its discretion.

D. The CIA's Definition of Agency "Records."

Plaintiffs contend that the CIA's definition of agency "records" is unduly narrow, and that they have been injured because the Agency relied on this definition in denying them records to which they are entitled. The CIA responds that plaintiffs lack standing to maintain this challenge, arguing that it did not rely on the definition's "exceptions" in processing plaintiffs' request. The district court did not reach this issue. We do not reach it either. We have held that the CIA made a full search in good faith for responsive documents, and that the withheld material was withheld properly. Since plaintiffs have received all documents to which they are entitled, no live controversy remains between them and the CIA on the definitional issue.

32 C.F.R. § 1900.3(g) (1976) defined CIA "records" to exclude (1) certain indexing and filing documents; (2) certain routing and transmittal sheets; (3) books and periodicals; (4) documents prepared by an agency other than the CIA; and (5) documents furnished by foreign governments under promise of confidentiality. The definition was amended in 1977 and the latter two exclusions were removed. See 42 Fed.Reg. 24,049 (12 May 1977) (codified at 32 C.F.R. § 1900.3(g) (1977)).

E. Attorneys' Fees.

The trial judge declined to award attorneys' fees to plaintiffs. The FOIA provides that attorneys' fees and costs may be assessed against the United States "in any case . . . in which the complainant has substantially prevailed." Although a cursory reading of this opinion would not suggest that plaintiffs have passed this test, they argue that even if all relief should be denied them they have "substantially prevailed" because the CIA released the Vandenberg Statement and portions of the Hillenkoetter statement after they commenced suit. Even if plaintiffs could show some causal nexus between their litigation and the CIA's disclosure, which they have not done, we doubt that plaintiffs could be said to have "substantially prevailed" if they, like Pyrrhus, have won a battle but lost the war.

5 U.S.C. § 552(a)(4)(E) (1976).

See Vermont Low Income Advocacy Council, Inc. (VLIAC) v. Usery, 546 F.2d 509, 513 (2d Cir. 1976) (Friendly, J.):

In order to obtain an award of attorney fees in an FOIA action, a plaintiff must show at minimum that the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of the information.

Res ipsa loquitur, as it were, is of no assistance to plaintiffs here. The CIA's release of the Statement, to all appearances, represents its good-faith efforts to come forward with newly-discovered documents as located. See p. ___ of 197 U.S.App.D.C., p. 355 of 607 F.2d note 95 supra. The fact that these documents were released after plaintiffs brought suit on 28 Jan. 1977, to all appearances, owes to the time-consuming nature of a search for materials "used to prepare for congressional testimony," p. ___ of 197 U.S.App.D.C., p. 353 of 607 F.2d supra; and to the fact that plaintiffs did not request access to such materials until 16 Dec. 1976. See pp. ___-___ of 197 U.S.App.D.C., pp. 343-344 of 607 F.2d supra. Plaintiffs' argument, in fine, boils down to post hoc, ergo propter hoc, a fallacy that Congress wisely refrained from incorporating into the attorneys' fees provision of FOIA. See VLIAC, 546 F.2d at 514.

In order to win the war, plaintiffs need not obtain a judgment in court. See Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 188-89, 553 F.2d 1360, 1364-65 (1977) (Tamm, J.) (citing cases); VLIAC, 546 F.2d at 513. They must, however, substantially prevail. Cf. Cuneo, 180 U.S.App.D.C. at 189, 553 F.2d at 1365 (plaintiffs substantially prevailed where, "[a]fter almost eight years of tedious, hard fought litigation, the government, faced with the appointment of a special master to review the case," supplied all the material requested). Even if the plaintiff is held to have substantially prevailed, the award of attorneys' fees lies within the district court's discretion. See Cuneo, 180 U.S.App.D.C. at 189-90, 553 F.2d at 1365-66; VLIAC, 546 F.2d at 512-13 (citing legislative history). An important factor in the exercise of this discretion is a determination whether the agency has been "recalcitrant in its opposition to a valid claim or [has] otherwise engaged in obdurate behavior." Cuneo, 180 U.S.App.D.C. at 190, 553 F.2d at 1366. The CIA's behavior was neither recalcitrant nor obdurate here.

The judgment of the district court accordingly is

Affirmed.

WILKEY, Circuit Judge:

On Appellants' Motion to Vacate and Petition for Rehearing

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge BAZELON.

PER CURIAM.

This petition for rehearing was occasioned by an inexcusable lapse on the part of the Central Intelligence Agency (CIA). While litigating the appeal whose disposition is here questioned, the CIA discovered but failed to disclose within any reasonable time hundreds of documents which were arguably responsive to plaintiff-appellants' Freedom of Information Act request. The documents' existence was not revealed until after we issued our decision, affirming summary judgment for the CIA. The failure to make the disclosure plainly called for naturally casts a cloud over the entire proceeding. Nevertheless, and without the barest intention of countenancing the CIA's untimely disclosure, on analysis of the issues argued and decided, we decline to disturb our judgment, save on the question of attorneys' fees. With respect to that question, we remand to the district court to reconsider its ruling in light of the altered circumstances of this case.

I. FACTS

We issued our opinion on 23 May 1978, affirming the district court's grant of summary judgment to the CIA. On 30 May 1978, a week after the issuance of our opinion, the CIA informed the Justice Department that it had found hundreds of additional documents that might be responsive to plaintiffs' FOIA request. The Department promptly informed plaintiffs and this court of CIA's discovery. On 6 June 1978 plaintiffs filed a petition for rehearing and suggestions for rehearing en banc.

The effect of this timely petition has been to suspend issuance of our mandate.

On 14 June 1978 the CIA released to plaintiffs' counsel thirty of the additional documents. In an accompanying letter the Agency stated that, even though it did not believe that all of the documents fell within plaintiffs' FOIA request, it was releasing them anyway to assist plaintiffs' scholarly research. The letter explained further that:

[m]ost of these documents were discovered late last fall, and additional documents earlier this year, by the librarian of the Office of General Counsel. She discovered all of these documents which were unindexed, in the course of her independent research on legal projects unrelated to the Goland case. Although a sampling of the documents last fall revealed their possible relevance to Goland, it was not until late May 1978, when a partial list of the documents was completed by the law librarian, that the extent of the documents, and the significance of some of the documents to the Goland FOIA request, were fully appreciated.

The following week, on 23 June 1978, the CIA released to plaintiffs' counsel an additional 291 documents. Also on that date CIA's associate general counsel, Ernest Mayerfeld, wrote the Justice Department to explain the circumstances surrounding the Agency's discovery and release of additional documents:

Most of these documents were discovered last fall by the Office of General Counsel librarian in the course of extensive research on two projects unrelated to the Goland litigation. Many of these documents were found in a CIA installation outside of Washington where inactive records are kept, only after great diligence and persistence by the librarian in connection with her research. She became aware of the existence of these documents, which had been stored in cardboard boxes and had not been organized in any fashion, as a result of several interviews with current and former CIA employees conducted in connection with her research projects. These documents were not indexed and could not have been found under normal FOIA search procedures.

I can state most emphatically that there was no intent within the CIA to conceal the fact that these documents had been found. The librarian, who had some personal familiarity with the Goland case and thus recognized that some of the documents which she had found might have some bearing on the Goland litigation, immediately (i.e. in late November or early December 1977), informed the General Counsel, the Deputy General Counsel and the undersigned. Because at that time the documents had not been organized or analyzed, and because it was not immediately apparent which if any were within the scope of the FOIA request in Goland, the General Counsel instructed the librarian to begin to organize these documents and segregate from among them those documents which qualified for designation as "legislative history."

The law librarian proceeded with her assigned task, but her extensive involvement in other routine duties prevented her completing this task as expeditiously as might have been desired. It should be noted that during this period she was engaged in a major reorganization of the law library which incidentally also entailed a physical move from one location to another. Also, although the Table of Organization of the Office of General Counsel called for an assistant law librarian, no one was appointed to that position until March 1978. The law librarian first completed a partial inventory of the additional documents on May 19, 1978 and shortly thereafter it was decided that all the newly-found documents would be released, subject to FOI[A] deletions, and you were immediately informed.

This, then, appears to be the sequence of events: (1) The district court granted summary judgment to the CIA on 26 May 1976. (2) Plaintiffs filed their notice of appeal on 23 July 1976. (3) In November or December 1977 — while this appeal was still pending but more than a year-and-a-half after the district court's decision — the CIA discovered additional documents, some of which arguably fell within the scope of plaintiffs' FOIA request. (4) Failing to inform plaintiffs, the Justice Department, or this court of the discovery, the CIA undertook a sluggish four-month examination of the documents. (5) It was not until a week after we issued our 23 May 1978 decision that CIA finally revealed its discovery and began releasing the documents.

Contending that this sequence of events completely undermines the basis of our 23 May decision, plaintiffs have now filed a motion summarily to vacate that decision. Plaintiffs' motion states in pertinent part:

The motion was filed 16 June 1978 — between the CIA's release of 30 documents on 14 June 1978 and its release of 291 documents on 23 June 1978.

The majority opinion affirmed the district court decision based on CIA affidavits. It appears that these affidavits are incorrect. . . . [T]he CIA has now produced . . . additional documents "discovered late last fall and additional documents earlier this year." Moreover, [the CIA] concedes that "a sampling of the documents last fall revealed their possible relevance to Goland . . . ."

No explanation has been offered by the CIA or the Justice Department for the CIA's strategy decision to stand mute as to the status of the affidavits relied upon by the Court until after the decision was handed down on May 23. Indeed, it appears the CIA chose to withhold this crucial information from the Justice Department until after such decision was handed down.

Based on these admissions and concessions . . . it should now be abundantly clear that discovery is appropriate in this case and in any event, attorneys' fees should be awarded because of the manner in which the CIA has chosen to conduct itself in this litigation.

Plaintiffs' contention seems to be grounded on three distinct facts or occurrences: first, the fact that additional responsive documents were found to exist; second, the fact that CIA delayed informing this court of the documents until the court had already issued its decision; and third, the fact that CIA ultimately released the documents to plaintiffs. Plaintiffs believe that these three facts warrant vacating the decision of 23 May 1978, at least in part.

II. DISCUSSION

In our 23 May decision we resolved five separate issues. We held: (1) that the CIA was not required under the FOIA to release a congressional hearing transcript that remained under the control of Congress; (2) that the CIA had properly deleted portions of the so-called "Hillenkoetter Statement" pursuant to Exemption 3 of the FOIA; (3) that, on the record, the CIA's search for documents responsive to plaintiffs' FOIA request was adequate and that the district court's grant of summary judgment without discovery was within its discretion; (4) that the CIA's definition of "agency records" was not in controversy; and (5) that plaintiffs' counsel were not entitled to attorneys' fees.

After carefully reviewing plaintiffs' contentions and the circumstances surrounding the discovery and belated disclosure of the documents, we find no occasion to disturb our affirmance as to issues (1) through (4), but we do vacate that part of our decision affirming the denial of attorneys' fees and remand to the district court for reconsideration of that issue.

A. Thoroughness of Search Issue

We based our determination of the "search" issue, as did the district court, on three affidavits of Gene F. Wilson, the CIA's Information and Privacy Coordinator. We concluded "that Wilson's sworn affidavits on their face are plainly adequate to demonstrate the thoroughness of the CIA's search for responsive documents. The affidavits give detailed descriptions of the searches undertaken, and a detailed explanation of why further searches would be unreasonably burdensome."

Maj. opin. at ___ of 197 U.S.App.D.C., at 353 of 607 F.2d.

1. Plaintiff's Theory

Plaintiffs contend that the discovery of additional documents indicates that the CIA affidavits in this case, relied upon by both the district court and this court, "are incorrect." Therefore, they argue that we should vacate our decision, or at least that portion of the decision dealing with the "search" issue, because it was predicated on inaccurate affidavits. We disagree.

As a substantive matter, the mere fact that additional documents have been discovered does not impugn the accuracy of the Wilson affidavits. The issue was not whether any further documents might conceivably exist but whether CIA's search for responsive documents was adequate. The Wilson affidavits never stated that no further documents existed; they merely described the scope of the searches that had been undertaken and stated that no additional documents could be located absent an extraordinary effort not required by the FOIA. As we indicated in our opinion, an agency is required only to make reasonable efforts to find responsive materials; it is not required to reorganize its filing system in response to each FOIA request. The circumstances surrounding the discovery of additional documents as described in CIA's letters of 14 and 23 June do not contradict the statements made in the Wilson affidavits. According to CIA, the discovery of these documents was entirely adventitious. They were found by the law librarian in the course of independent research on projects unrelated to the Goland litigation. The documents were not indexed; they were found, only after extraordinary effort, stored in cardboard boxes primarily among the 84,000 cubic feet of documents at CIA's retired-records center outside of Washington. According to CIA, the documents "could not have been found under normal FOIA procedures." Thus, it would appear that the new facts before us now do not really conflict with the facts as presented to the district court and reflected in the record upon which our decision was based, and would not, as a substantive matter, prompt us to vacate our affirmance.

Maj. opin. at ___ of 197 U.S.App.D.C., at 352 of 607 F.2d.

Concededly, the discovery of additional documents is more probative that the search was not thorough than if no other documents were found to exist. Moreover, the delay in disclosing the documents at least arguably evidences a lack of vigor, if not candor, in responding to FOIA requests. However, a disappointed litigant may not avail herself of every imaginable inference from newly disclosed facts in order to upset a final judgment. The occasions when newly discovered evidence or changed circumstances will warrant setting aside a final judgment are limited procedurally as well as substantively.

2. Applicable Principles of Appellate Review

A final district court judgment may be altered on direct review only through two procedures. One, of course, is the present appeal. The other is a motion in district court for relief from the judgment under federal rule 60(b). Appellate review is ordinarily unaffected by matters not contained in the record. This we think is the case with the facts disclosed here, whether characterized as "newly-discovered evidence" or "changed circumstances." In neither event do the disclosures warrant vacating our judgment.

See Carr v. District of Columbia, 177 U.S.App.D.C. 432, 439, 543 F.2d 917, 924 (1976).

Fed.R.Civ.P. 60(b).

There are a number of settled exceptions to this general principle of appellate review; as, for example, where there is an intervening change in a pertinent law, e.g., Gomez v. Wilson, 155 U.S.App.D.C. 242, 247-48, 477 F.2d 411, 416-17 (1973); changed circumstances which render the controversy moot, e.g., Wirtz v. Local Union 410, 366 F.2d 438, 442 (2d Cir. 1966); changed circumstances which alter the appropriateness of injunctive relief, e.g., Korn v. Franchard Corp., 456 F.2d 1206, 1208 n. 3 (2d Cir. 1972); In re Gulf Aerospace Corp., 449 F.2d 733, 734 (5th Cir. 1971); and, in limited cases, facts which may be judicially noticed, e.g., Landy v. Federal Deposit Insurance Corp., 486 F.2d 139, 150-51 (3d Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974).

The fact that additional documents exist, insofar as it is probative of the thoroughness vel non of the search, is rather plainly "newly discovered evidence." We have found no case in which the Supreme Court or a court of appeals has granted a rehearing or vacated its opinion based on newly discovered evidence. The reason for this should be self-evident: an appellate opinion is based on the record before it, and hence cannot be set aside on the basis of newly discovered facts outside the record. This rule is clear in the Supreme Court's cases, dating from those in the last century to the recent Standard Oil case where the Court refused to recall its mandate and vacate its opinion on the basis of newly discovered facts, stating that its opinion was confined to the record.

See, e.g., Carr v. District of Columbia, 177 U.S.App.D.C. 432, 436, 543 F.2d 917, 921 (1976); AG Pro, Inc. v. Sakraida, 481 F.2d 668, 669 (5th Cir. 1973), rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976); Davis v. Casey, 70 App.D.C. 27, 34-35, 103 F.2d 529, 536-37 (1939).

E.g., Maxwell Land-Grant Case, 122 U.S. 365, 7 S.Ct. 1271, 30 L.Ed. 1211 (1887); Roemer v. Simon, 91 U.S. 149, 23 L.Ed. 267 (1875).

Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976).

An appellate court has no factfinding function. It cannot receive new evidence from the parties, determine where the truth actually lies, and base its decision on that determination. Factfinding and the creation of a record are the functions of the district court; therefore, the consideration of newly-discovered evidence is a matter for the district court. The proper procedure for dealing with newly discovered evidence is for the party to move for relief from the judgment in the district court under rule 60(b) of the Federal Rules of Civil Procedure.

Insofar as plaintiffs rely on the facts surrounding the documents' discovery and release by the CIA, their argument is more nearly dependent on "changed circumstances." To be sure, there are occasional cases in which altered circumstances are properly noticed on appeal. Invariably in such cases, however, events have altered the essential nature of the controversy, as, for example, where there has been an intervening change in the law or where the controversy has become moot. But in this case the distinction between new evidence and altered circumstances is largely a matter of technical usage rather than substance. Here the intervening events are allegedly probative of the same contentions as arose from the mere existence of the documents ( i.e., that the search was not conducted thoroughly or in good faith). Consequently, for purposes of appellate review of these allegations, we think nothing turns on the arguable distinction between newly discovered evidence and altered circumstances. Under either theory the proper course ordinarily would be to proceed in the first instance in district court under rule 60(b).

See note 7 supra.

The distinction is ordinarily made between these two grounds of relief for purposes of applying the timing rules for filing motions under Fed.R.Civ.P. 60(b). To be "newly discovered," evidence must have been in existence at the time of the trial, see C. Wright A. Miller, Federal Practice and Procedure § 2859 n. 35 (cases cited) (1973). However, in this case, the alleged substantive effect of the disclosures is independent of their characterization for purposes of rule 60(b). Moreover, the exercise of our discretion is likewise unconfined by the "correct" rule 60(b) characterization of these facts.

Finally, inasmuch as relief in district court may be foreclosed, it might be thought that this court, in the exercise of our appellate jurisdiction, should remand for further proceedings in light of the new facts without regard to the strictures of rule 60(b). Some support may be found for the proposition in the broad language of 28 U.S.C. § 2106, which provides:

See pp. ___-___ of 197 U.S.App.D.C., 372-373 of 607 F.2d infra.

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

This court recently reserved the question whether section 2106 afforded an alternate way of reopening a final judgment in light of new facts. Although our research has disclosed no case which has so held, we may suppose arguendo that we do have ample revisory power under section 2106 in appropriate cases. We are nevertheless thoroughly convinced that this would not be a proper occasion for such extraordinary relief. Nothing in the circumstances which plaintiffs raise suggests to us that the district court judgment was incorrect. We are satisfied by the submissions to this court that the original failure to uncover the documents was wholly understandable and not inconsistent with the district court's finding that the search was thorough.

Carr v. District of Columbia, 177 U.S.App.D.C. 432, 444 n. 96, 543 F.2d 917, 929 n. 96 (1976) (if it appeared relief were not otherwise available, court would consider "whether the interests of justice would not require [it] to remand to the District Court to consider the claim").

Moreover, although the delay in releasing the materials may not be excused, we do not think that that misconduct vitiates the district court's finding either. Only were we to indulge a fairly harsh inference as to the bona fides of the CIA would we be inclined to upset the judgment. The instant facts fall quite short of supporting any such conclusion. Consequently, whether or not there is any possibility of relief from the judgment in district court, we decline to disturb our affirmance respecting the thoroughness of the search. We reach this conclusion fully aware that we deal here with a summary judgment whose factual basis derives from affidavits and without discovery.

3. Relief in the District Court

Relief from a final judgment may be sought in district court through a rule 60(b) motion; our decision not to vacate our affirmance is, of course, without prejudice to plaintiffs' proceeding under that rule. However, as we have noted, that approach may be difficult or wholly unavailable.

Fed.R.Civ.P. 60(b) provides as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Insofar as the additional documents are new evidence, recourse to rule 60(b) is governed (and apparently precluded) by the rule's strict timing requirements. There is an ironclad one-year limit on the filing of a rule 60(b) motion based on newly discovered evidence. Such motions must be filed within one year from the date the judgment was entered in the district court, which in this case was 26 May 1976 — two years ago and more. The one-year period is not tolled by a pending appeal, and under the federal rules no court has power to extend the deadline.

Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 334, 463 F.2d 268, 280 (1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972); C. Wright A. Miller, Federal Practice and Procedure § 2866, at 233 (1973).

The one-year time limit in rule 60(b) applies only to motions under clauses (1), (2), and (3), covering fraud between the parties, newly discovered facts, and misconduct of a party. There is also a catch-all clause (6), covering "any other reason justifying relief from the operation of the judgment." There is no time limit for motions brought under this clause; however, relief under this clause is not available unless the other clauses, (1) through (5), are inapplicable. It may be that a showing of changed circumstances would bring plaintiffs within the residual 60(b)(6), although it is far from certain either that the allegations are not covered by clauses (1) through (3) (in which case they would be time barred) or that they present the "extraordinary" circumstances for which relief under 60(b)(6) is reserved.

Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 93 L.Ed. 266 (1949); C. Wright A. Miller, Federal Practice and Procedure § 2864, at 217 (1973).

See, e.g., Ackermann v. United States, 340 U.S. 193, 202, 71 S.Ct. 209, 95 L.Ed. 207 (1950); C. Wright A. Miller, Federal Practice and Procedure § 2864 at 219-20 (1973).

In any case, rule 60(b) contains a saving clause which states that the rule "does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding . . . ." Thus the rule does not extinguish the historical authority of equity courts to reform judgments in appropriate cases. The one-year limit on certain of the rule 60(b) motions is not applicable to the independent action, leaving it, apart from collateral attack, as the only manner of obtaining relief from a judgment in those cases where the 60(b) motion has become time barred. We recently recalled that "`the exception for equitable interposition by independent suit rests on "stringent" rules limited to circumstances "which render it manifestly unconscionable that a judgment be given effect".'" Although such circumstances may sometimes appear from evidence disclosed after the judgment, such extraordinary review is not to be indulged loosely. We have observed:

See Advisory Committee Note to 1946 Amendment to Rule 60(b); West Virginia Oil Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 706 (5th Cir. 1954). The independent action is, of course, to be distinguished from the ancillary common law and equitable remedies specifically abolished by rule 60(b).

Carr v. District of Columbia, 177 U.S.App.D.C. 432, 442, 543 F.2d 917, 927 (1976) (quoting Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 333, 463 F.2d 268, 279 (1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972)).

in an independent action seeking relief from a judgment on the basis of newly-discovered evidence and asking for a new trial the plaintiff must meet the same substantive requirements as govern a motion for like relief under Rule 60(b): he must show that the evidence was not and could not by due diligence have been discovered in time to produce it at trial; that it would not be merely cumulative; and that it would probably lead to a judgment in his favor.

We merely note the difficulty of satisfying the "stringent" rules which circumscribe the trial court's discretion in such matters; our disposition does not, of course, foreclose plaintiffs' bringing an independent suit for relief.

B. The Hearing Transcript, the Hillenkoetter Statement, and the Definition of "Agency Records" Issues

With respect to the congressional hearing transcript issue, we held in our 23 May decision that, given the circumstances of the transcript's creation, it "remains under the control of and continues to be the property of the House of Representatives." Thus, we concluded that "the Hearing Transcript is not an `agency record' but a Congressional document to which the FOIA does not apply."

Maj. opin. at ___ of 197 U.S.App.D.C., at 347 of 607 F.2d.

Maj. Opin. at ___ of 197 U.S.App.D.C., at 348 of 607 F.2d.

With respect to the Hillenkoetter Statement issue, we held that the deleted portions of the Statement could properly be withheld pursuant to FOIA Exemption 3, which was determined to encompass 50 U.S.C. § 403(d)(3) and 50 U.S.C. § 403g. Our analysis involved a two-step inquiry: (1) whether the CIA's nondisclosure statutes — sections 403(d)(3) and 403g — are Exemption 3 statutes; and (2) whether the withheld materials, as described by CIA's affidavit, fall within the nondisclosure statutes.

Finally, we refrained from reaching the definition of "agency records" issue because no live and genuine controversy remained on this matter between plaintiffs and CIA.

Neither the discovery of additional documents, nor CIA's delayed disclosure of this discovery, nor CIA's ultimate release of the documents in any way undermines our holdings on these three issues. The discovery and release of new documents obviously does not change the character of the Congressional Hearing Transcript. It remains a congressional record for the reasons stated in our opinion, and as such was properly withheld by CIA. Similarly, the discovery and release of additional documents clearly has no bearing on whether, as a matter of law, sections 403(d)(3) and 403g are Exemption 3 statutes or on whether portions of the Statement fall within those nondisclosure statutes. Finally, the circumstances of the discovery and release of new documents do not give rise to a controversy between the parties as to CIA's definition of "agency records."

Nevertheless, plaintiffs argue that the CIA's discovery of additional documents does, in a very remote sense, bear upon the validity of our holdings on the Transcript, Statement, and Definition issues. They point out that our conclusions on these three issues were, to varying extents, based partially upon assertions in CIA's affidavits. Thus, they argue that, since the discovery of new documents suggests that CIA's affidavits may have been inaccurate in one respect, namely, the thoroughness of search issue, they may also have been inaccurate in other respects, namely on these other three issues. Therefore, plaintiffs argue, our decision on these points may have rested on incorrect affidavits. In other words, plaintiffs' contention is that the CIA's discovery of new documents is circumstantial evidence that the Agency's affidavits generally may not have been accurate.

Our reasoning with respect to the issue of the search's thoroughness is fully applicable here. We will not vacate our judgment on the basis of such a tenuous theory. The allegations raise no serious doubt as to the correctness of the district court's findings. Plaintiffs may nevertheless wish to seek relief from the district court under rule 60(b) or otherwise. In the meanwhile, our resolution of the Transcript, Statement, and Definition issues must stand as originally stated in our 23 May decision.

See pp. ___-___ of 197 U.S.App.D.C., pp. 369-374 of 607 F.2d supra.

C. Attorneys' Fees Issue

In our 23 May decision we declined to award attorney's fees to plaintiffs, holding that plaintiffs had not "substantially prevailed" even though the CIA had released the Vandenberg Statement and portions of the Hillenkoetter Statement after they commenced suit. We stated: "Even if plaintiffs could show some causal nexus between their litigation and the CIA's disclosure, which they have not done, we doubt that plaintiffs could be said to have "substantially prevailed' if they, like Pyrrhus, have won a battle but lost the war."

Maj. opin. at ___ of 197 U.S.App.D.C., at 356 of 607 F.2d See 5 U.S.C. § 552a(4)(E) (1976).

Plaintiffs now contend that this aspect of our decision has been undermined by subsequent events. They point not to the CIA's discovery of additional documents or to the Agency's delay in revealing this discovery, but rather to the fact that CIA ultimately released these additional documents. Plaintiffs' argument seems to be that there is the requisite causal connection between their prosecution of the action and CIA's ultimate release of further documents such as they may now be said to have "substantially prevailed" in the litigation. The Agency's release of documents occurred after the decision in this case. Thus, this part of plaintiffs' argument relies on a post-judgment change in factual circumstances.

Of course, plaintiffs might move to reopen this particular issue in district court by means of a rule 60(b)(6) motion. The one-year limit in rule 60(b) applies only to clauses (1) through (3); it does not apply to clause (6) which authorizes relief from judgment for "any other reason justifying relief from the operation of the judgment." As we have observed, one of the grounds for relief that has been recognized under this broad rubric is post-judgment change in circumstances.

See Scott v. Young, 307 F. Supp. 1005, 1007 (E.D.Va. 1969), aff'd, 421 F.2d 143 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91 (1970); American Employers Ins. Co. v. Sybil Realty, 270 F. Supp. 566, 569-70 (E.D.La. 1967).

However, in the interest of expediting this matter and because we entertain little doubt that the merits of the attorneys' fees argument should be reheard in light of the new facts, we vacate that portion of our affirmance and the District Court judgment pertaining to fees and remand for the District Court's reconsideration.

So ordered.