UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Alan Jules Weberman, et al.,

)
)

Plaintiff,

)
)

v.

)
)

Fe...
' A'

' ,•

i.

Room because of the frequency of requests for this material.
(4)

Among the documents that would have been...
.

<"' . •
litigation.

(A copy of this letter is attached hereto as Exhibit G.)

(12)

By letter dated December 19, 1979,...
,
respectf~lly referred to an affidavit prepared by SA Maurice

c.

Hurst of the FBI Records Management Division which con...
Although the (b) (2) exemption was asserted to delete
the source symbol number for individuals who furnished information
i...
,

may seriously prejudice their effectiveness in the conduct of other
cases to which they are assigned .

The privacy con...
Sin~e the FBI has no means of controlling the use made of information
released pursuant to an FOIA request, privacy rights...
.

this ' time would sever the bonds of mutual trust and destroy confidence
in the FBI, thus seriously imped i ng further ...
)

~

the1r right to privacy.

(See also paragraph

(18)

(C) (3), supra.)

To

disclose the identity of a person intervie...
reasons set forth above has been furnished to plaintiff.

The

detailed justification, itemization and indexing of the mat...
JEB:yp
6/25/81
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-x

ALAN JULES WEBER}Ulli, and
INDEPENDENT RESEA...
.

....

....

JE'B:kmk
06/ 24/81
' ' · ·-::-

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.

- ·-· ..

.··
....;

UNITED STATES DISTRICT COURT
SO...
UNITED STATES DISTRICT COURT
SOUTHERN -DISTRICT OF NEW YORK

- - - - - - - -- -

-x

ALAN JULES WEBERMAN and
INDEPENDENT R...
,

l

I

;, .

- Defendant will file a
response .
- Motion will be argued
Dated:

New
June

, 1981
JOHN S. MARTIN, JR .
Un...
'

'

~ .

i. :.

·'h": :

f',,·,
......
~

:.' . . . :

~~ ~ - ~
,.,

;~:·~~ ~ ~

... ·.
'::-:·;· ' .
·-·-·· :' ~::·
:

....
mysterious assassination of Pre sident John F. Kennedy in 1963.

As a r esearcher

and :1uth or who has s peciaU zed i n r...
identifiers" which were essentially not part of the documents, but part of
its own document locater system, and therefore ...
Agency, 490 F.Supp. 9 (S.D.N.Y.), remanded on appeal, 646 F.2d 563 (2d Cir.
1980); proceedings on remand in that case repo...
most part, the deletions as made seek to protect confidential sources, and
that fact is readily apparent from the document...
.

.. -

.. ....
~

~:

referred to as the "Church Conunittee" since Senator Church was its chairman.
The affidavit also s...
-

- !

..

seems important, and a balancing of the interests favoring disclosure would
seem to weigh heavily against thos...
case under the existing law.
Accordingly, plaintiff's motion for an ex parte in camera inspection
of the documents is deni...
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEt-7 YORK

------------------------------------x
ALAN JULES WEBERHAN et...
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NE~v YORK

-------------------------------------x
ALAN JULES WEBERMAN an...
Amendments 1974 pages 8 and 9)

"I·f the qovernment•s submissions

are unconvincing the district court may undertake in ca...
~L AN

JULES WEBERMAN ,
Plaintiffs

et a l.
Civil Action Number

v.

80-CIV-2903-CLB

FEDERAL BUREAU OF INVESTIGATION ,
De...
,
.I

•

2.

(2) I

hav e examined the doc ument s being sought

for review by the plaintiff throur,h litir-ation pursuant...
3.

•

"The committee hc Jie> ves,
available to i t ,
involved in the

that

on the basis of evidence

the Cuban Governmen...
4.

·"In the three years I worked as · a U .S... GoveYnment
investigator on the John F. Kennedy assassination, the
reactio...
"'

..

5.

able infringement of your rights.
"And yet the analogy is quite obvious:

The con-

spiracy to kill the Presid...
6.

freedom.

(5)

It will be gone soon enough ."

Congress formed the House Select Committee on

Assassinations as a re s...
.i

I

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

ALAN JULES WEBERMAN, et al.
Plaintiffs,

Civil ...
·-·~

(2} This affidavit is filed ·com temporaneously with the affidavit of
Special Agent John N. Phillips, FBI. My affida...
r.
.I

(4) Exercising my judgment as an original Top Secret classification
authority, I have in fact determined that the u...
'·
.i

8 9
mai'ked as required ' and each document is stam ped with the proper classifioA.tiQn
10
designation. The documen...
and FBI Regulations;

12

Furthermore, the restrictive procedural criteria set forth

in EO 12065, § 1-6, have been follow...
(6) In my capacity as a declassification authority, I have determined
that the classified portions of the files addressed ...
These paragraphs describe the damage to the national security that could reasonably
be expected to result from unauthorize...
with absolute confidentiality. It must be recognized that most governments>unlike
that of the United States, do not offici...
i

DEFINITION OF INFORMATION CONCERNING
INTELLIGENCE ACTIVITIES, SOURCES AND METHODS
(12) EO 12065,

§

l-301, (c), recogn...
(f)

Information that could reveal, jeopardize or compromise a
technical or mechanical device, procedure or system used or...
(14) Another serious consequence of exposure of this category of information
is that it can lead to exposure of the identi...
in an FBI counterintelligence investigation from being more serious than it otherwise
might be should a document containin...
between the source and 81lother individual. It may relate to facts known to only
a smBII group of individuals of which the...
ITEMIZATION, INDEXING AND DESCRIPTION Qf
CLASSIFIED INFORMATION WITHHELD FROM
PLAINTIFFS PURSUANT TO 5 U.S.C. § 552 (b)O)
...
Document number 4, Dallas file number 44-1639, serial4195, is an
airtel dated January 29, 1964, consisting of 1 page. The ...
Document number 5, Dallas file number 44-1639, serial 3540, is a

m~~ morandum

dated December 31, 1963, consisting of 1 p...
Document number 8, Headquarters (HQ) file number 44-24016, serial 491,
consists of two communications. One is an airtel da...
Document number 9, HQ file numoor 44- 24016 , serial 564, is an airtel
dated December 6, 1963, consisting of 1 page. This ...
Document number 10, Dallas file number 44-2064, serial 398, dated
July 25, 1977, was released in its entirety without dele...
Docum-ent number 11, HQ file number 65-65405, serial 821, is an airteJ.
dated December 11, 1963, consisting of 5 pages. Th...
Document number 13, HQ file number 62-109060, serial 3447, consists of
two communications. One is a letter dated July 8, 1...
·•

This completE> the itemization, indexing and description of classifie<i
.s
material withheld under 5 U.S.C. S 552 (b)(...
-

£ J.HIB/1

L
ur.JtJ..J~L

·1

U~S<.;RIP'fiON

NUMBER

__...._. ,'--'V V j •UJ&t .L

OF DOCUMENT

'!

PAGES

ACT.

4{-1639-1343 IHouston...
-

~ ...... """'~''""'

NUMBi.:R
.7

NUHB
ER
4 ~ -24016-847

pa.ge 330

ION

OF DOCUMENT

PAGES
ACT.
REL.

EXEMPTIONS

DEL...
TION
OF DOCUMENl'
·13 2

PAGES
ACT.
REL.

DELETION(S)

EXEMPTIONS

I:

7/8/64 Hoover

letter to J. Lee
Rankin with
attachm...
IJVV

Ul"LUUJ.

NUMBER

0J.<: JU AL --

NUMBER

DESCHIPTION
OF DOCUMENT

PAGBS
ACT.
REL.

DELETION(S)
Page 7, paragraph 2,...
..
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Weberman v FBI

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Trying to get the Federal Court to order the FBI to come clean about the Big Event.

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Weberman v FBI

  1. 1. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Alan Jules Weberman, et al., ) ) Plaintiff, ) ) v. ) ) Federal Bureau of Invest i gation, et al.,) ____________________________________ Defendants. Civil Action Number 80-CIV-2903-CLB ) ) ) AFFIDAVIT OF JOHN N. PHILLIPS I, John N. Phillips, being duly sworn, depose and say as follows: (1) I am a Special Agent of the Federal Bureau of Investigation (FBI) assigned in a supervisory capacity to the Freedom of Information-Privacy Acts (FOIPA} Section, Records Management Division, of the FBI at FBI Headquarters (FBIBQ), Washington, D. C. (2) Due to the nature of my official duties, I am familiar with the procedures followed in processing Freedom of Information Act (FOIA) requests received at FBIHQ. initially involved with plaintiff's FOIA request . I was not I am, however, familiar with the various exemptions allowed under Title 5, United States Code, Section 552, wherein documents or portions thereof may be withheld from disclosure, and I have supervised the preparation of the detailed justification and itemization set forth in this affidavit. (3) Plaintiff, Alan Jules Weberman, appeared at FBIBQ, Washington, D. C. and requested, pursuant to published FBI procedure, to inspect available FBI files relative to the John F. Kennedy assassination. In accordance with the FBI's normal procedure in this regard, these files were made available as an FOIA request for plaintiff's review, after 48 hours notice of intent to do so was tendered to the FBI. These files, among others, have been placed for such inspection by FOIA requesters in the FBIBQ Readi ng .. . - ·· - -··-·- - - ····- --- ------·- ---··· - -- -·· -··· -· ·-··------- -· ---- ·- --~ -- ··---·-----·-·-·--- ---- - -- -· __ --·- ----- - - - -·--·- - - - ·-·· ·_ .... __- - --·-·-·· --_ ·-- - ·· ··-·- ·--··- --
  2. 2. ' A' ' ,• i. Room because of the frequency of requests for this material. (4) Among the documents that would have been ava i labl e to the plainti ff as a result of th is FOIA request are the do...,; ww nts e which are the subject of the instant litigation. These documents which are from FBIHQ and the Dallas and New Orleans Field Offices, were previously retrieved and processed in accordance with the provisions of the FOIA pursuant to a separate FOIA request for John F. Kennedy (5) ~ssassination material. By letter dated March 23, 1979, plaintiff appealed to the Associate Attorney General, Office of Privacy and Information Appeals (OPIA), Department of Justice, Washington, D. C. , with respect to the deletions made in four documents, two of which are the subject of instant litigation. (A copy of this letter is attached hereto as Exhibit A. ) (6) By letter dated April 10, 1979, the plaintiff was advised of the backlog of appeals in the OPIA and that he would be notified of the decision of the Associate Attorney General at a future date. (A copy of this .letter is attached hereto as Exhibit B.) (7) By letter dated May 11, 1979, the Associate Attorney General affirmed the initial action taken by the FBI. (A copy of this letter is attached hereto as Exhibit C.) (8) By letter dated June 1, 1981, plaintiff's appealed to the Department of Justice with respect to the deletions made in four documents, each of which are the subject of instant litigation. (A copy of this letter is attached hereto as Exhibit D.) (9) By letter dated June 19, 1979, the plaintiff was advised of the backlog of appeals in the OPIA and that he would be notified of the decision of the Associate Attorney General at a future date . (A copy of this letter is attahced hereto as Exhibit E.) (10) By letter dated July 13, 1979, the Associate Attorney General· affirmed the ini tal action taken by the FBI. (A copy of this letter is attached hereto as Exhibit F.) (11) By letter dated November 15, 1979, plaintiff appealed to the Department of Justice with respect to the deletions made in a specific document which is one of those at issue in instant ____ _ -- ---------- ·- ---------- ---- - . --- --- ----.. ----- -- - ---- ,.., _ --- -- -···-- -·-·---.. · "' · --- --- ------ - ----· ~ --- ·---·--- - -- ~- -·-·- - - --- - -·--·--- --- -- - 2 - - -··
  3. 3. . <"' . • litigation. (A copy of this letter is attached hereto as Exhibit G.) (12) By letter dated December 19, 1979, the plaintiff was advised of the backlog of appe als in the OPIA and that he woul d be notified of the decision of the Associate Attorney General at a future date. (A copy of this letter is attached hereto as Exhibit H.) (13) Associate FBI. By letter dated January 24, 1980, the Acting Attor~ey General affirmed the initial action of the (A copy of this letter is attached hereto as Exhibit I.) (14) By letter dated April 29, 1980,. plaintiff appealed to the Associate Attorney General, OPIA, Department of Justice, the deletions made in six specific documents, each of which are the subject of instant litigation. (A copy of this letter is attached hereto as Exhibit J.) (15) By lett~r dated May 14, 1980, the plaintiff was advised of the backlog of appeals in the OPIA and that he would be notified of the decision of the Associate Attorney General at a future date. (A copy of this letter is attached hereto as Exhibit R.) (16) A review of the material which is the subject of this litigation was determined by me to be investigative records compiled for law enforcement purposes . The investigation into the assassination of President Rennedy was conducted pursuant to the request of President Lyndon Johnson. (17) Plaintiff was advised that portions of the attached documents were withheld pursuant to various exemptions allowed under Title 5, United States Code, Section 552. These excisions were based on the following exemptions allowed by the FOIA: (A) Classified Matters Title 5, United States Code, Section 552, subsection (b) (1) exempts from disclosure information specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy when information is in fact properly classified pursuant to an Executive Order. .. -- .- - - .. ·-- - With regard to this exemption, the Court is . - 3 - - - ··-··-- ·-- - - - - -- - ··-·- ------ - -- -·-- -------- -- -
  4. 4. , respectf~lly referred to an affidavit prepared by SA Maurice c. Hurst of the FBI Records Management Division which contains a detailed - justi~ication for information withheld which is p~opec ly classified. (B) Internal Practices of the Agency Title 5, United States Code, Section 552, subsection (b) (2), exempts from release under the FOIA information relating solely to the internal personnel rules and practices of an agency. Deleted pursuant to subsection (b) {2) were source symbol numbers and file numbers assigned to confidential informants who reported to the FBI on a regular basis. As a routine internal administrative practice, the FBI assigns symbol numbers to certain individuals. practice is utili~ed This routine to protect the identity of individuals who furnished information in confidence on a regular basis. symbol numbers, con~isting unique to the individual. These of a code of letters and numbers, are They are used in written documents and communications to refer to the individual. When an FBI employee reads a document containing a source symbol nwnber, he is aware, based on his experience and his knowledge of the FBI's policies and guidelines, that the information is to receive special protection. To release to the public the symbol number assigned to a particular individual may tend to divulge the identity of this individual. conclusion. Several factors support this First, the letters and numbers which comprise a source symbol number have independent significance and meaning. For example, each symbol number has a two letter abbreviation which identifies the particular FBI field office wherein the individual is located. Secondly, the disclosure of a source symbol number should not be viewed as an isolated instance. If the particular symbol number is released to the public at various times and in various document contexts, this would ultimately lead to the identification of the individual. Each new context in which the symbol number is disclosed reveals additional items of information such as dates, times, places and names of persons fran which the identities of FBI sources can de deducted. - - --- -- ····
  5. 5. Although the (b) (2) exemption was asserted to delete the source symbol number for individuals who furnished information in confidence, · the (b) (7) (D) exemption (see, paragraph (18) (D} , i n f n t)': was also asserted to withhold this same information. In some instances we asserted the {b) (2) exemption to delete FBI file nUmbers assigned to the files housing information from confidential sources. As a routine internal administrative practice, file numbers are assigned to individuals who provide information to the FBI on a regular basis. As with the source symbol numbers, if these unique numerical identifiers are released to the public at various times and in various document contexts, this would ultimately lead to the identification of the confidential sources Each disclosure would reveal additional items of information such as dates, times, places and names of persons which can be added together and analyzed and lead to the identification of the confidential source. Although the {b) (2) exemption was asserted to delete this information, the (b) (7) {D) exemption concerning the protection of sources is also applicable. (C) Unwarranted Invasion of Personal Privacy Title 5, United States Code, Section 552, subsection (b) (7) (C) exempts from release certain information the disclosure of which would constitute unwarranted invasion of personal privacy. In each instance wherein this exemption has been applied as hereinafter set forth, I have balanced the public's right to know against the individuals's right to personal privacy. In so doing, the historical significance of this crime was also considered for the purpose of providing maximum disclosure. The various types of information excised pursuant to this exemption are as follows: (1) Representatives of Other Government Agencies The exemption allowed by (b) (7) (C) was asserted to protect the identities of employees of other Government agencies, which appear in our investigations generally as individuals contacted in connection with the investigation. The identities of these individuals which appear in the materials at issue were withheld as their assignment to investigations is not by choice, and publicity (adverse or otherwise) regarding any particular investigat ion - - --·--- --- --- ·--·- - - -·- -- - --- -- - ____,_ . ·-- .... _ , -·-- ·-·----- ---- -- - - -- -- - ---- - --- --- ~ --s -~ ------ - -
  6. 6. , may seriously prejudice their effectiveness in the conduct of other cases to which they are assigned . The privacy conside r a t ion i s t o protect these indi viduals , from unnecessary unoff i c ial ques t i on in~ as to their conduct while performing in their official capac i ty, and from subpoenas issued by private litigants in civil suits connected with the official inquiry. In affiant•s opinion there is no justification for placing the individual names of these civil servants, ~efore the public. Any release pursuant to the FOIA must be considered a release to the public. (2) Names of Individuals Other than the Subject of the File Exemption (b) (7) (C) has also been asserted to withhold the names and identities of individuals of an investigative interest other than the subject and information pertaining to those individuals These individuals are shown as subjects of the focal point of the investigation or are considered as possible or positive suspects in an unsolved criminal or security matter. Such individuals are of investigative interest to the FBI based upon an allegation of wrongdoing which has not been proven, or because of past activity on the part of the individual . Exemption (b) (7) (C) was used by itself to .withhold the identities of third parties who had been identified by an interviewee. (3) Third Parties Interviewed The (b) (7) (C) exemption - (Privacy) was asserted in conjunction with (b) (7} (D) - (Confidential Source) to delete the identities of third parties interviewed and personal infermation about them. All reasonably segregable information furnished by the third party interviewed was released to the extent that it would not tend to identify that third party. It is proper to with- hold identities of individuals interviewed or otherwise in contact with the FBI in connection with an FBI investigation. During the Kennedy Assassination investigation, much information, however useful, was contributed by concerned citizens who otherwise might no~ have cooperated had they known at the time that their identities might become public at some later date. When these persons are inter- viewed, there is either an expressed or implied assurance that the ir names will not be indiscriminatley released to the public at large. --- --·- - - ··-- -· ·-·· - --- ·- -·-·· ·- - ----- - ------------ - -·-- - -·- - - -- - --··· --- ---- -- --- -·- -- --·- -··-·--· --- ·--·- ------·---------- -- - -- 6 -
  7. 7. Sin~e the FBI has no means of controlling the use made of information released pursuant to an FOIA request, privacy rights c·a nnot be restored once the information has been disclosed. It is d i f f.i.(~n.lt: ,. if not impossible, to anticipate all "respects in which disclosure could damage the reputations of third parties , or lead to unnecessary public attention, harassment, or personal discomfort. To initiate such an inquiry would destroy the privilege, for the inquiry cannot be made without revealing identities or personal identifiers. While the public interest in disclosure must be wei ghed against privacy consideration, it was nevertheless determined that the pr ivacy considerations with respect to these deletions were warranted because those who choose to cooperate with law enforcement should not now be required to pay the price of disclosure of their identities. Additionally, from my five years of investigative experience in FBI field offices, I have discovered that persons interviewed often assume, quite logically, that the information they furnish an FBI agent or other employee is for the assistance of the FBI only in the fulfillment of its official respons i bilities and that their identities and their cooperation with the FBI will not be publicly exposed. I also know that the fear of exposure often inhibits the cooperation of otherwise conscientious citizens. This consideration has been met by the traditional will i ngness of the FBI to as sure persons interviewed that their identities would be protected. (D) (See also paragraph (18) (D) (1), infra.) Confidential Source Material Title 5, United States Code, Section 552, subsection (b) (7) (D) allo~s for the deletion of material that would disclose the identity of a confidential source and confidential information furnished only by a conf idential source. The most important tool the FBI possesses as an investigative agency is the ability to elicit public cooperation through interviews . This cooperation i s dependent upon the conf idential relationship, which was the basis for the source prov i ding us with the information. __ - ---- -· - ·- _ ____ ___________ -------- -- ··- ·- -··· · --·· .... ____ _ - ---~-- ,.. To reveal the identity of the source at - 7 - . .. ... ·--··· ~-- ---- - - ~ -·--·----·~· · -- _ ,. _ ·- - --___ _______ ---·--- _ ----__ _ --· - ·-·- ..--· ----~--- --· -·--- ·--- ,__ - ---------~-
  8. 8. . this ' time would sever the bonds of mutual trust and destroy confidence in the FBI, thus seriously imped i ng further cooperation between American citizens and this agency in attempting to carry o r t the investigative responsibilities imposed upon it by law. The following specific types of information were deleted pursuant to exemption (b) (1) (7) (D): Persons Interviewed The (b) (7) (D) exemption (Confidential Source) was cited in conjunction with (b) (7) (C) (Privacy) to protect the identities of persons interviewed and any of the information they provided which would tend to reveal their identities. The privacy of a person interviewed has been traditionally protected by the FBI on the basis that the information was received confidentialy. Under the FOIA, these considerations are stated in two separate exemptions~ however, in many instances they compliment each other and are not mutua~ly exclusive. When agents of the FBI conduct interviews, they seek information concerning individuals or matters within the investigative jurisdiction of the FBI. Persons interviewed often assume, quite logically, that the information they furnish is only for the assistance of the FBI in fulfilling its investigative responsibilities, and that their identities . and the act of their cooperation with the FBI will not be publicly exposed. Persons providing information, including witnesses to a crime, who may expect to be called upon at a later time to testify in public at a judicial proceeding, should be secure in the knowledge that, absent the necessity of such public testimony with its attendant judicial restraints and protections, their assistance rendered the Government will be held in confidence and that it will not be violated. The fear of such exposure all too often inhibits the cooperation of otherwise conscientious citizens. These considerations have been met by the willingness and the ability of the FBI to assure persons interviewed that their identities would be protected. This consideration is also recognized under the statute which exempts material from confidential sources and reinforces --- ----- - ------- -- ·-- - - - - - --- --·:;;-=a ·-:,::------···-- ·- ·- ------- - -·
  9. 9. ) ~ the1r right to privacy. (See also paragraph (18) (C) (3), supra.) To disclose the identity of a person interviewed would be more than an unwarranted invasion of his personal privacy; it woulc breach the confidentiality under which he was interviewed. (2) Sources Reporting Information on a Regular Basis While the confidential sources referred to in the preceding paragraph furnished information in only one interview and did so under implied assurances of confidentiality, certain other sources are individuals from whom information is received on a regular basis under a clearly expressed assurance of confidentiality. Such sources are informants within the common meaning of that term. The identity of these sources is so sensitive that they are usually not referred to by name in the FBI documents which record the information they furnished. Instead, they are assigned symbol numbers in order to conceal the informant's actual identity, but still enable the FBI to determine who he is. These special precautions are necessary to guard against the possible harm that may befall these persons if their identities are revealed. The deletion of the coded identification numbers of sources is essential to prevent the accumulation of information known to be . from a specific source, which might result in detection and exposure of individuals furnishing information to the FBI in confidence. It is only with the understanding of complete confidentiality that the aid of such people can be enliste.d and only through this confidence that such individuals can be persuaded to continue providing valuable assistance in the future. (See, also, paragraph (18) (B) , supra.) The deletion of established informants' names, symbol numbers, or other identifiers is appropriate. Whenever possible, a discretionary release of the information provided was made if it appeared that the release of that information would not disclose the confidential source. (18) All documents which are the subject of this litigation have been processed, and material not exempt from disclosure for the ·- -- - -···--·---- ··--·------P.. -9 !' - - ----·- - ..... _ _ __ _ _ _ __ _ _ _ _ _ __ _ _ _ _ -..__
  10. 10. reasons set forth above has been furnished to plaintiff. The detailed justification, itemization and indexing of the material withheld in these documents is contained in the attached chart. (See, Exhibit L.) The following definitions apply to the headings appearing therein: (A) Document Number Assigned for purposes of the affidavit only • . Serial Number (B) This is the number given to the document when it was made a matter of ·record at FBIHQ and usually appears at the lower right hand side of the document. (C) Description of Document The date and nature of the document are furnished. Pages (D) The actual number of pages of the document and the number of pages released are furnished. This section briefly describes the nature of the (E) information deleted from the document. Any greater description of deleted material would in fact reveal the information which is properly withheld. Exemptions (F) This section indicates the FOIA exemptions asserted for each deletions. (G) Cross Reference This section sets forth a reference to the paragraph in this affidavit detailing the utilization of a particular exemption. Also attached hereto (see, Exhibit M) is a copy of (19) each document described in the aforementioned chart. Phill1ps Agent Federal Bureau of Investigation Washington, D. c. ,, ....., ~ ,,,/" Subscribed and sworn to before me this ~-~~ · -------- day of ~ '-~~ ' 1981 <';; <:.~ ··. < , . / y. /-.- &Ot~~y P~bilb' My Canmission expires '~ 6---. 2 . / - 5'~> -·. { 5 • ---- - - - - - - - - - - - - - - - - - - - 10 - <£,l f / /
  11. 11. JEB:yp 6/25/81 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -x ALAN JULES WEBER}Ulli, and INDEPENDENT RESEARCH ASSOCIATES SIX BLEEKE~ STREET, NEW YORK .CITY, 10019 STATEMENT PURSUANT TO LOCAL RULE 6 Plaintiffs, -againstFEDERAL BUREAU OF INVESTIGATION , TENTH STREET AND PENNSYLVANIA N. W. , WASHINGTON , D . C. , and tmiTED STATES DEPARTMENT OF JUSTICE, TENTH STREET AND PENNSYLVANIA AVENUE, WASHINGTON, D.C. 20530, Defendants. - - - - - - - - - - - - - - - - - -x Defendants, by their attorney, John S. Martin, Jr., United States Attorney for the Southern District of New York, submit that . there .are no material facts in dispu te. Respec tfully submitted, JOHN S . MARTIN, JR. United States Attorney for the Southern District of New York By:~E. c i1dt ;J,ANE BOOTH ' lAssistant United States Attorney Telephone: (212) 791-1993 . i
  12. 12. . .... .... JE'B:kmk 06/ 24/81 ' ' · ·-::- ~- -:- ----:1"· . . - ·-· .. .·· ....; UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -x ALAN .JULES WEBERMAN and INDEPENDENT RESEARCH ASSOCIATES SIX BLEEKER STREET, NEW YORK CITY 10012, Plaintiffs , - against - NOTICE OF MOTION FEDERAL BUREAU OF INVESTIGATION, TENTH and PENNSYLVANIA AVES, N.W . WASHINGTON , D.C. , 20535 and UNITED STATES DEPARTMENT OF JUSTICE, TENTH AND PENNSYLVANIA AVES, N.W., WASHINGTON, D.C. 20535, 80 Civ. 2903 (CLB ) Defendants. - - - - - - - - - - - - - ~ - - - X S I R S: PLEASE TAKE NOTICE that upon the annexed affidavits, the accompanying memorandum and all prior proceedings, the defendants by their attorney, JohnS. Martin, Jr., United States Attorney for the Southern District of New York , will m ove this Court before the Honorable Charles L. Brieant, Jr . , on the 15th day of July, 1981 in Room 705 of the United States Courthouse, Foley Square , New York, New York at 9 : 30 a.m . or as soon as counsel may be heard for an order granting summary judgment pursuant to Fed. R. Civ. P. 56(b) dismissing the complaint in its entirety and for such further relief as is just . Dated: New York, New York June 25, 1981 Yours, e tc., JOHN S. MARTIN, JR . United States Attorney f or the Southern Distric t of New York Attorney for De f endants !) 1~~ £ I - . :T;( By : _ ·j ;--;::;-----.l-~:;;-;---~::;.__ . . . , _ ,...;: ( d -(7_ i!4NE E . BOOTH _ _ __ ' ~ssistant United State s Attorne y Telephone: ( 212 ) 791-1993 TO: JAN BROWN, ESQ . Billet, Brandes, Becker & Brown 225 Broadway Suite 2605 New York, New York 10007
  13. 13. UNITED STATES DISTRICT COURT SOUTHERN -DISTRICT OF NEW YORK - - - - - - - -- - -x ALAN JULES WEBERMAN and INDEPENDENT RESEARCH ASSOCIATES, Plaintiff, STIPULATION AND ORDER -against- 80 Civ. 2903 (CLB) FEDERAL BUREAU OF INVESTIGATION TENTH STREET AND PENNSYLVANIA AVE. NW, WASHINGTON, · D.C. 20535 and UNITED STATES DEPARTMENT OF JUSTICE TENTH STREET AND PENNSYLV~IA AVE. WASHINGTON, D.C. 20530, Defendants. - - - - - - - - - - - - - -x IT IS HEREBY STIPULATED AND AGREED by and between the undersigned attorneys for the respective parties herein that the schedule for the summary judgment motions is amended as follow: June 26 -£16 - Defendant motion - will file its Plaintiff will fil e its response •
  14. 14. , l I ;, . - Defendant will file a response . - Motion will be argued Dated: New June , 1981 JOHN S. MARTIN, JR . United States Attorney for the Southern District of New York E. BOOTH istant United tates Attorney Tele phone: (212 ) 791-1993 J~B~,. ~SQ. 27 Br~~~Y S 'te 1200 N~ York, New York Attorney for Plaintiff SO ORDERED United State s District Judge
  15. 15. ' ' ~ . i. :. ·'h": : f',,·, ...... ~ :.' . . . : ~~ ~ - ~ ,., ;~:·~~ ~ ~ ... ·. '::-:·;· ' . ·-·-·· :' ~::· : .. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ~·~ -.- -------- -x .. ALAN JULES WEBERMAN AND INDEPENDENT 80 Civ. 2903-CLB · RESEARCH ASSOCIATES, .. -~-- . . . Plaintiffs," -against- MEMORANDUM AND ORDER .-. FEDERAL BUREAU OF INVESTIGATION AND UNITED STATES DEPARTMENT OF. JUSTICE, ' . Defendants. •·' . • # - - - - -X i " . Brieant, J. In this action brought under the Freedom of Information Act, 5 U.S.C. · f 552, et ~· . ("FOIA"), plaintiffs seek to obtain disclosure of redacted portions of thirteen documents in the possession of the Federal Bureau of Investigation ("FBI"), which were previously disclosed in redacted form. · : .;-; . ~ ;_ .. which the Government's answer asserts that the documents were properly redacted '-, pursuant to the exemptions set forth in •. ·. § 552(b) of the FOIA. Defendant, by motion docketed June 26, 1981 and fully submitted on September 9, 1981, sought summary judgment in its favor. .'i Plaintiffs, by motion docketed August 24, 1981, sought an in- camera inspection by the Court of the redacted materials pursuant to § 552(a) of the FOIA. Plaintiff and his business, known as Independent Research Associates, -. are engaged in historical research and writing bearing principally on the ' ·,- ' ·'. •. Plaintiffs claim that the FBI r ."dacted portions of the documents_improperly, / r~~)~~~::.:-~·> ·.
  16. 16. mysterious assassination of Pre sident John F. Kennedy in 1963. As a r esearcher and :1uth or who has s peciaU zed i n revision ist his tory concerning that even t, plaintiff is no stra nger t o FOIA litiga tion. He tried previous ly t o pry out data being withheld under various exemptions to the FOIA, which also pertained to the assassination of President Kennedy, as well as the subsequent killing . of Lee Harvey Oswa ld by Jack Ruby and Jack Ruby's activities and affiliations before the assassination. Although all of the s e events occurr~d in 1963, ~orne . 18 years ago, the Government ha s been successful in invoking statutory exemptions with respect to materials sought by Mr. Weberman. See Weberman v. National Security Agency, 507 F.Supp. 117 (S.D.N . Y. 1981); Weberman v. National Security Agency, 490 F.Supp. 9 (S.D.N.Y.) r emanded on appeal, 646 F.2d 563 (2d Cir. 1980); as well as several unpublished opinions under docket No. 77 Civ. 5058-CLB (S.D.N.Y. 1981) • . ·' . , ' .J .:· Mr. We b e rman has made a numb er of FOIA reques.ts which were complied with in part after redacting the ins truments to obscure materials claimed to be exempt under 5 U. S.C. § 552(b)(7)(D). :. ..•~ l the Department of Justice ···; An '· substantially administrati~e appeal followed, and affirmed the action of the Bureau in . · .~· • . .. deleting material from the docume nts. In connection with this m ion the Government also relies on Executive ot Order No. 12065 and contends that the information redacted is exempt because the reques t would involve information concerning the foreign relations or foreign activities of the United States, the disclosure of which would cause identifiable damage, and/or information given to the United States by an official of a foreign . .government in confidence. The Government also deleted so-called "unique numerical -2- .'•
  17. 17. identifiers" which were essentially not part of the documents, but part of its own document locater system, and therefore privileged because could be made from the sequences. deductio~s The Government also relies on §§ 552(b)(l). 552(b)(7)(C), 552(b)(7)(D) and 552(b)(7)(E). The documents as redacted have been submitted on this motion. addition, defendant submits the affidavits of Mauri~e In C. Hurst, a special agent of the FBI and of John N. Phillips, also a special agent. .. - ., Both affiants are assigned in a sup·~rvisory capacity to review classification of documents in the files of the FBI in order to comply with : --:;. . .: . ·.,· ~ the FOIA. ·' The affidavit of Mr. Hurst shows that his activities in the matter were concerned only wit~ information withheld from disclosure under 5 U.S.C. :, :·:{ ·.. § SS2(b)(l), which exempts materials specificallj authorized under criteria ·. i -::i . : r ;~ established by an Executive Order to be kept secret in the interests of nationaii))i:;·: .:~ defense or foreign policy, and properly so classified in fact pUrsuant to Order. Familiarity witl:l t;h~ detailed ~~a.tements •ucll·· ~j~i.· .·:. · contained in that affidavit is assumed on the part of the reader, and it appears unnecessary to repeat the matters therein set forth. There is no showing that the affidavit is in < · ·.{:'~~''' ~ . .:,.,:r.:~;~r~ : . ..._i:~,~ --~~i~;:,. any ·:·< · tF .'~ ~ . ·- w4y untruthful or incorrect. To the extent that there is a balancing test b, tween the public interest in disclosure, and the possible damage to the '• ' '" : ·' -~~;.._.:~_.... ~· ~.: -·,_ :.-· . : n, tional security which might reasonably be expected from disclosure, the deciaioD: .. }; i~ vested in the Executive Branch of Government and not in this Court. i Based on consideration of the affidavit of Mr. Hurst against the . ' b, ckground of this Court's prior decisions in Weberman v. National ·security I I -----"-------·-+'---·- - -...,.I I .,
  18. 18. Agency, 490 F.Supp. 9 (S.D.N.Y.), remanded on appeal, 646 F.2d 563 (2d Cir. 1980); proceedings on remand in that case reported at 507 F.Supp. 117 (S . D. N.Y. 1981); and a supplemental decision in that case, not officially reported, filed June 5; '1981, under docket No. 17 Civ. 5058-CLB, the Court concludes that defendant's position is validly taken . Indeed, to a large extent, the rationality of the determination by Mr. Hurst and his colleagues in the Executive Branch is properly the subject of preclusion by collateral estoppel, since the fa~tual· positions taken by the Executive Branch, and upheld by the Court in the prior ~. Weberman case, are closely parallel to the positions taken by the Executive Branch with r espect to the top secret class~fications of the documents in this . case. _ •' ' ; ,; · . . To the extent that Special Agent Hurst, by his affidavit executed ... - June 17, 1981, has classified and withheld material as therein stated, the . . .. ... :·.---~ ;·.·---::) Court finds that his actions were lawful~ ..·. ... --· -· .-. -----~ ; -·/ ..-: In addition to the Hurst affidavit, the Government presented the affidavit of John N. Phillips, another ,Special Agent assigned in a supervisory · .'._ ,_.. :· ... • ' ' I .. 1 • ' ~ ' ~ ::::::n:oD:::.:::e::mt:: :::o:·:::::::::~YD~:~• Section of the Recorda "•~}~ ' , ;· ~~;~~~~ ·: . Mr. Phillips' affidavit details correctly the history of plaintiff 1 • -;',' ;_;: . : ·.: ---~ ::~;~:.. .. ' efforts to obtain the material he ·.seeks, and the resultant administrative · ·'·.· ·· -: . ·.; -' proceedings. • : -~-.. ;}:~ - . Mr. Phillips essentially seeks to justify the deletions on tb~.,_~.;.~~---·_·f ' documents which were partially disclosed. I . ( ' A reading of the deleted docWDent• : ..- ' ~ 'I-:.._ .-··:t- q~: ~ :c:,~ .:, supports an inference that each of these deletions was well taken. For the ··~ . .
  19. 19. most part, the deletions as made seek to protect confidential sources, and that fact is readily apparent from the documents themselves. The foregoing analysis, and the fact that the Phillips' affidavit stands unchallenged, when considered against the background of the record in the · prior Weberman case, compel the conclusion that defendant's motion for . summary judgment should be granted. Plaintiff does not seriously dispute this analysis and has made no showing that the affidavits of Hurst or Phillips were ·. affected by bad faith. Ordinarily, in the absence of such a showing, an in camera inspection (ex parte) would seem unnecessary. Lead Industries Ass'n., Inc. v. Occupational Safety & Health Administration, 610 F.2d 70, 87-88 (2d Cir. 1979). .·.·· :. .. nevertheless has by formal motion sought an in camera inspection of the docu- :~ . -~ ~' ments. There is no question that the Court has the power to undertake an in - ~.' _:/~.'; Pla'intiff . . .~ ~ . .;_~~ '::;;~~~ camera inspection of documents where a dispute has arisen as to their availabilitJ.~',r} . under the FOIA. . :·,:t,; /:j However, whether such an in camera inspection should be under-;·::;·:);~;·,~ taken is addressed to the discretion of the trial court. '" · . . ,,; ;:t,:t•4, ··: 't'f::~: . ~. ~'j c~~fj Plaintiff has submitted the affidavit of Gaeton J. Fonzi, who is also .. ':_)~~~~j a researcher into the events surrounding the assassination of President Kennedy • . "!.':.?~ . :....,"' . Mr. Fonzi's affidavit shows that he has been so engaged since 1966, and that he was employed for about a year during 1975-76 as a staff investigator for a United States Senator, then serving as co-chairman of a sub-committee regarding the assassination of President Kennedy of the Select Committee to Study Governmental Operations wit.h Respect to Intelligence Activities. generally ..· .. ~
  20. 20. . .. - .. .... ~ ~: referred to as the "Church Conunittee" since Senator Church was its chairman. The affidavit also shows that he served as a staff investigator for the U. S. House of Representatives Select Committee on Assassinations investigating the President Kennedy assassination. Mr. Fonzi held a top secret clearance and claims authorship of "most of Volume X of the [Church] Committee's final report." Mr. Fonzi urges that the information and conclusions reached by the House Select Committee on Assassinations and their subsequent publication • makes the withholding of portions of the requested documents under Executive Order No. 12065 "ina pplicable . " He argues that the contention of Agent Hurst ::::::::::~::::::::r::::::~:::::::::~::::::~~::::::::::~:::·:~:::::~:·:- · .:;;:. r_l J. ; Committee Report. .. ~ . ' ....:. ...: :/ t .·. ~ ..... This argument or theory did not meet with favor in the Cou1.·t of Appeals<~i~);._;. .. ..):,;(t in its treatment of the last W eberman case, supra, although this Court found it ·· . .·.•,;: ~f.: .•, : . :.:;:£([~ persuasive. · ·~ '. .. •' .. This Court shares the concern over the mysteries still extant con~ · :~,·: ~i~t ::~:::i::::·:::·::·::::r::dP::·:::n::::::::::...~:t:::: ::.M:.f::::rin ;:{~~l ~ .,..,_,~;.~.~- '; ,~tilf.~..r.~ overriding concern about the distortion and revision of history, and shares · ·:~. ·;.'r:::~~j; < plaintiff's view that the full story of the assassination of President Kennedy ·" ,, · . and the killing of Lee Harvey Oswald ' remains to be told. : ~' • ,·. The powers of this Court, however, are limited to ensuring compliance with the FOIA statute. . :.''.,< c. f>'.. . . ; · v.:;;~: ,~:~1W: - -~~ .,..,: ':<:k~; The release of all these files after so many years ' -6- ::
  21. 21. - - ! .. seems important, and a balancing of the interests favoring disclosure would seem to weigh heavily against those interests relied upon by the Government in resisting the request. Surely most undercover FBI informants who were functioning in 1963 have moved on to greater glory by now. Certainly most foreign governments have been reorganized since that time and new leaders are in power to whom any revelations from the 1960's will 'be no surprise. This Court recognizes, however, that the necessary decision is properly within the realm of Congress or the Executive Branch, and is not for this Court to make. Similarly, the Court believes that in camera inspection of documents (by which expression is usually meant ex parte examination of argume nt and documents) is usually counterpr0ductive, and contrary to the proud ( tradition of the Judicial Branch to hear both sides on any contested issue. and to allow full access of an adversary to all things which the other participant in a lawsuit places before the Court or jury. This Court has detailed its views on the point of ex parte in camera examination of documents to a considerable extent in the prior Weberman case, 490 F.Supp. 9 '-, ~appeal, . ·.· (S.D.N.Y.), remanded ·:.·::- ' . 646 F.2d 563 (2d Cir. 1980), and adheres to the same views. . ... .·. ·•· ; the Court's determination not 'to indulge in~ parte in camera considerations ':. .··: ;,. ·-.. : While .. - _. .....L ... : .... .• ·····'' in the prior Weberman case did not meet with favor in the Court of Appeals~ it remains the law that such a request is always addressed to the Court's discre( tion. .-· ·... The Court finds nothing in this case which would move its discretion to _..:-:: , be exercised in favor of 'ex parte.in camera inspection, and declines to do so. While the Court believes most strongly that these requests should be ' ·granted, the Court believes that defendants are entitled to prevail in this '·
  22. 22. case under the existing law. Accordingly, plaintiff's motion for an ex parte in camera inspection of the documents is denied, and the defendant's'motion for summary judgment is granted. The Clerk shall enter a judgment that all relief shall be denied. No. costs .. Dated: New York, New York November 16, 1981 . ''• CHARLES L. BRIEANT • Charles L. Brieant U.S.D.J. ' J. ! -,; ' I~ ..:} ·.·'t~~~:; ..: . ~( . :· -' -. . .. ··~ ·~· .., ~8- ,c-----~--------~~C-.~~~~'~--~--~--------- -------------------~-------------------------
  23. 23. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEt-7 YORK ------------------------------------x ALAN JULES WEBERHAN et . al. NOTICE OF MOTION plaintiffs 80 Civil 2903 (CLB) vs. FEDERAL BUREAU OF INVESTIGATION and UNITED STATES DEPARTMENT OF JUSTICE defendants. ------------------------------------x SIRS: PLEASE TAKE NOTICE that upon the annexed affidavits, the accompany ing memorandum and all prior proceedinqs, the plaintiffs by their attorney Jan. H. Brown, will move this Court before the Honorable Charles L . Brieant , Jr., on the ~ day of September, 1981 in Room 705 of the United St ates Courthouse, Cf_p I tt-1 (7 Fo l ey Square, New York, New York at - 9;3Q a.m. or as soon as co~nsel may be heard for an order granting in camera inspection. Dated: New York, New York August 24, 1981. Yours etc. JANi H . 3 ROWN ATTORNEY FOR PLAINTIFF 277 BROADWAY SUITE 1200 NEW YORK, NEW YORK TEL: 212-73 2-0633
  24. 24. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NE~v YORK -------------------------------------x ALAN JULES WEBERMAN and INDEPENDENT RESEARCH ASSOCIATES plaintiffs, SO Civil 2703 (CLB) vs. MOTION FOR IN CAMERA INSPECTION UNDER 5 U.S.C. 552 (a) FEDERAL BUREAU OF INVESTIGATION and UNITED STATES DEPARTMENT OF JUSTICE defendants. -------------------------------------x COMES NOW the plaintiffs, Alan Jules lleberrnan and Independent Research Associates, by and through their undersigned attorney , Jan H. Brown, and respectful l y requests this Court grant in camera inspection of the requested FBI documents concerning Jack Ruby. Section 552 (a) of the Freedom of Information Act provides that a court "may" conduct an inspection of documents in question and release certain portions. But bo~h the legislative history of Section 552 and the court decisions interpreting i t make. clear that in camera inspection is not to occur as a matter of course. Therefore, plaintiffs are offering an affidavit in response to the affidavits of Maurice c. Hurst and John N. Phillips to call into question the good faith of the Bureau's representation . The annexed affidavit of Gaeton Fonzi will demonstrate that in camera inspection is appropriate in this matter. In camera inspection is a cornrnen practice in FOIA cases . See, e.g., Bristol-Meyers Co vs . FTC , 424 F. 2d 935 (D.C. Cir. 1970), cert denied, 400 US 824 (1970) . Before it undertak es de novo inspection, the court must give the government a n opportunity to demonstrate by affidavits that the documents are exempt but in many cases in camera inspection will "plainly be necessary and appropriate." (Con ference Report on FOIA
  25. 25. Amendments 1974 pages 8 and 9) "I·f the qovernment•s submissions are unconvincing the district court may undertake in camera inspection of the documents under the 1974 Amendments." Founding Church of Scientology vs. Bell , No. 78-1391 (D.C. Cir.) It may do so "without anxiety that the law interposes some extraordinary hurdle to such inspection ••. where the record contains a showing of bad faith ••. " Ray vs. Turner, 587 F2d 1197, 1195. By their own admission, defendants admit that unclassified information is being withheld from disclosure. Hurst Affidavit page 2. For the foregoing reasons, and also those expressed in the attached affidavit of Gaeton Fonzi, in camera inspection is appropriate in instant matter. DATED: 24 August 1981 NEW YORK, NEW YORK respe c t fully submitted, JANN H. BRCYtlN Attorney for Plaintiffs 277 Broadway Suite 1200 New York , New York Tel: 212-732-0633
  26. 26. ~L AN JULES WEBERMAN , Plaintiffs et a l. Civil Action Number v. 80-CIV-2903-CLB FEDERAL BUREAU OF INVESTIGATION , Defen dant s ~· 1. • t (.> OF GA "C TO~ I , Ga e t o n ,T • Fo n z i , ' , . d <.:.: n o s C> C! n d s ay 0 s f o 11 o "' s : • have (1) I research e~ assassination of Presirlent Between Novembe r, as a i nvesti ~a t ed Rnd Jo ~ ~ ~. ~0nnedy 29 75 and Octobe r, 19 76 , the sinc e 1966 . 1 was e n1p 1 o y e tl staff investi g ator .for United S tates Senator Richard S. Schweiker; then co - chairman o f t he S ubcommittee on the of Presi0ent John F . Kennedy of t be Select Assas~ination Committee To Study Gov e rnmental Onerat i on s With Respect To Inte::.~_ ige r.. ce Activ i ti e :'l . (Genera:t.J.y B~ t~ een January, 1976 and December, a staff investiga~o r Assassinations, ~earns most of V o~ume Secre t I wa s employed as House ·se lect Comm ittee on of <H:'. t :.. v :1. t i e s i n c1 u de dealing vith a nt i -Ca s tro g rou p s Cr i me a nd the ·~op 1 97 8 , Com~it tee . ") invest iga tin g the a s s ass inat i on of President ""1 y a r e a s Kennedy. for the U. S. called "the Church ~e ntr al Intelligenc~ c ,.- o r k .;_n g t h Com mi t t ee a nd in (! vicuals, Or gani zed A~ency. X of the Committee's final c~r a rance . wi I was report . the author of I hel d -~
  27. 27. , .I • 2. (2) I hav e examined the doc ument s being sought for review by the plaintiff throur,h litir-ation pursuant to the Freedom of Information !le t (FOIA) and I have ex.:~tni ned the affidavits of Federal Bureau of Investigation Special Agent s John N. Phillips and Maurice C. Hurst. (3) It is my belief that the documents so u ght ·by the plaintiff should he released in their entirety and that informat ion and conclusions reached hy the House Select Committe_e on Assassinations makes withholding portions of them under Executive Order (EO) 12065 inap~licable. As cited by Agent Hurst in his affidav i t, the substantive classification • criteria as established by EO 1206 5 dea l s vlith "forC'iqn government information," ·"intell igen ce activities, or methods ," and "forei~n of the Un ited States." rel."!ti on s or forei g n activities In ad di t&on, relea se o f must also "cause at least identifiable damage . security." sourc es the documents - to the national As a rationale for withholding information under .· the nbove criteria, Agent Hurst maintains that disclosure of intelligence and foreign inform,:J t i on would "seriously strain'' r elations between the United StateR Gove rnment and foreign governments . The · House Select Committee on Assassinations has, however, negated that possibility in these conclus ions in its Findings ·and ··R ecoinmcndDtions Repo rt 1 82 8, AS ("House Report No. Part 2) : "The committee believes, on the b<Jsis of evidence available ·to i t , that the Soviet Governm e nt was not involved in the assination of Pres ident Kennedy ." ( ·. reported 95-
  28. 28. 3. • "The committee hc Jie> ves, available to i t , involved in the that on the basis of evidence the Cuban Government was not assassin<~tion of Presid ent Ken n edy.'' "The Secret Service, Federal Ru re au nf Invest1?,ation and Central Intelligence Agency were not involved in the assassination of P resident Kennedy. 11 After examining the documents in question, it is my belief that in view of the Assassinations Committee's final co.nclusions there would be rio possibility that the release o£ any. information from a p eriod that has :become historical would "seriously strain" any foreign relations. Nor could it reflect on the activities of the intelligence agencies. (4) It is my firm belief that the overriding consideration in resolving the question of r e lease of these documents must be viewed in terms of the perspective provided by the House Select Committee on Assassination's final conclusion: "The committe believes, on the basis of the evidence available to it, that President John F. Kennedy was. probably assassinatec1• as a result of a conspiracy ." 1s an explanatory extension of this viewpoint, I submit this preface to an artiQle entitled "The Last Investigation, the House 11 which chronicled my experiences with Co~mittee and appeared in the p ublications of the FJ.orida Magazine Publishers group The Wash ~. notonian Magazine: 2.~ well as
  29. 29. 4. ·"In the three years I worked as · a U .S... GoveYnment investigator on the John F. Kennedy assassination, the reaction of most people I'd meet outside the case was usually something like this: on that? ' worki~g it? ' Or , 'we· won ' t will we?' Or , Or, ' Oh, are they s till ' That's a waste of mon ey , isn't ever know what really happened, 'Tt.That difference does it make nm..r , anyway?' "Thenever I got those rec>.c tions, I wo':lld have to restrain a spa~k o f anger that would flare within me. --:· _ ... ,. .oc ..!..~ev e that today, more than e ver , it does make a c17. fference . It matters. "A President of the United State s was as~assinated 17 y ears ago and we still don ' t know what happened . . There is no doubt now that it was a conspiracy , but we aren ' t sure of anything beyond that . We do not know . And , yet, most of us-- the polls say a nd the press .re=lects it . - - are not very angry about that . We don't l i ke it, but we are · no longer very upset about it . That 's history and, Lord knows , there are enough worries todav . "But I think you should be very angry about it . The assassination of President Kennedy was a blatant ,affront to each and every one of us who believes that we, as indivicnals, · should have some control over who governs us and how we are governed. If you don ' t uncer s tand that, you don't under s t and the basis of the democratic system . You would have been very angry if someone with a gun. had s topped you from acing into the voting booth , had taken away your f reed om to choo se . You would have seen that quite :..·lear ly a s a direct a·ttac1< against th e d e:nocratic system - - and an.outrageous per sonal affront t o y ou , an unouesti c~ - .·
  30. 30. "' .. 5. able infringement of your rights. "And yet the analogy is quite obvious: The con- spiracy to kill the President of the United States was also a conspiracy against the democratic system --and thus . a conspiracy against you. The choice that you made in the voting booth was disapproved . That's why it stil2. matters . .. Understand this also: The action that brought about the death of President Kennedy is related to what ~ is happening today. It prefaced the disintegration of faith in our government. Its residue lies in the ashes of the Sixties, in burnt-out countrie~ and burnt-out cities anc in many of our burnt-out young peop.!.e . It fa thered . the now prevailing and debilitating assumpt ion that we no longer have control over our e conomic or political des'::iny . democ~atic VTe are now a so- called nation in which less than a third of the people eyen bother to vote and increasingly don't grve a damn about ~hei r government; where the quality and quantity of our prod uc tivity is declining; and where there is rampant cynicis~ and · d isrespect for all established institutions . "Perha.ps at the time of Kennedy ' s assassination Lo t enough was known to spark · immediate reaction and a nger, and the gradual manner in which it became known only generated C!i.sillusionrnent and cynicism . And yet, after two official government investigations , it remains outrageous in a democratic system that we still don ' t knm,, what hC'.ppened - - we don't know exac-t ly-. v,rhat ';l?,.S done to t' S and by whom. "I -think you should very angry about that. you !lligh t a s wel l let slip the g rip on your If not, individual
  31. 31. 6. freedom. (5) It will be gone soon enough ." Congress formed the House Select Committee on Assassinations as a re sult of the public consensus that Preside nt Kennedy ' s assassinat ion remained unsolved, contrary to the conclusions of the Warren Conunission Report. That consensus developed over the years as a result of the long and arduous labors of independent investigators and researchers who t:.ncovered a v::1st array of new evidence. The plaintiff was among them and remains one of the most qualified and competent individuals in the country capable of evaluating and assessing information and documents related to the Kennedy assassination . His voluntary aid to the Assassinations Committee was extremely va luable . I have examined the dele t ed copies o f t he (6) following cocuments~ 44-1639- 1343; 4 4-1639-5406; 44-1639-4768; 44-1639-4195; 44-1639-3540; 44- 24016- 847; 44-24016-4 91; 44-240 1 6-564; 62 - 109060-344 7. 65- 65405-8 21; 65-109060 - 000; : t is my belief that the fut ure of a p roperly functioning democrat·i c soc i ety mandates complete public knowledge of the circumstances of the a ssassination of Pr esiden t Kennedy and that mandate must override any c:~ssification system in 'udgrnent be regards to the se documents and that made of that contention . SUBSCRIBE!) A...lID SWORN TO bef ore me , this ~ 1/;:cL d2y of 1981 . Pub_;_::..c N tary Public, Stale of Fl.oriclo at t~·:;-~e : M1• Co mmiHion Expires May 5, J )..;~
  32. 32. .i I UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ALAN JULES WEBERMAN, et al. Plaintiffs, Civil Action Number So-CIV-2903-CLB v. FEDERAL BUREAU OF INVESTIGATION, et al. Defendants. AFFIDAVIT OF MAURICE C •. HURST I Maurice C. Hurst, hereby depose and say as follows: (1) I have been a Special Agent of the Federal Bureau of Investigation (FBI) for eleven years. I am presently assigned in a supervisory capacity at FBI Headquarters, Washington, D. C., with responsibility for review of the classification status of FBI information under current Executive Order (EO) 12065.1 Part of my responsibility is to·make the necessary classification reviews of material being sought through litigation pursuant to the Freedom of Information Act (FOIA). 2 I have been designated by the Attorney General, United States Department of Justice, as an original Top Secret classification authority3 and a declassification . 4 aut honty. 1 43 Federal Register 28949, June 28, 1978, effective D.~cember 1, 1978. 2 5 U.S.C. S 552, as amended. 3Executive Order (EO) 12065, §§ 1-201 and 1-204. 4 Id., § 3-103.
  33. 33. ·-·~ (2} This affidavit is filed ·com temporaneously with the affidavit of Special Agent John N. Phillips, FBI. My affidavit concerns only information classified and withheld from disclosure pursuant to 5 u.s.c. § 552 (b)(l). 5 Unclassified information withheld from disclosure pursuant to other exemptions specified in 5 U.S.C. § 552 (b) is addressed by the affidavit of Special Agent Phillips. (3) Prior to the preparation of this affidavit, I personally examined the classified documents falling within the scope of plaintiff's FOIA request and addressed herein. As a result of this examina.~ion, I have determined that the documents contain information meeting the substantive classification criteria as established by EO 12065. These substantive criteria are called "Classification Requirements" in EO 12065 and are as follow$.: § 1-301. Information may not be considered for classification unless it concerns: ••• (b) foreign government information; (c) intelligence activities, sources or methods; (d) foreign relations or foreign activities of the United States .••; § 1-302. Even though information is determined to concern one or more of the (above} criteria••• , it may not be classified unless an original classification authority also determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security; and § 1-303. Unauthorized disclosure of foreign government information or the identity of a confidential foreign source is presum~d to cau:;e at least identif-iable damage to the national security• .·.· 5 5 U.S.C. § 552 (b)(l) provides: "(The) section (compelling disclosure) does not apply to matters that are-(A} specifically authorized under criteria established by an Executive order to be kept secret in the interest of national def ense or foreign policy; and (B) are in fact properly classified pursuant to such Executive order." 2
  34. 34. r. .I (4) Exercising my judgment as an original Top Secret classification authority, I have in fact determined that the unauthorized disclosure of the contents of the classified documents addressed herein reasonably could be expected to cause at least identifiable damage to the national security 6 and, therefore, must be kept secret. I declare that these documents are appropriately "Confidential" pursuant to EO 12065. 7 cl~sified (5) In addition to my determination that the classified documents of the files addressed by my affidavit meet the substantive requirements of EO 12065, I have also determined that they have been properly processed in compliance with the procedural requirements of EO 12065. The face of each document has been .. 6 Eo 12065, § 6-104, defines national security as"· •• the national defense and foreign relations of the United States." 7 Id., § 1-1, Classification designation. 1-101. Except as provided in the Atomic Energy Act of 1954, as amended, this Order provides the only basis for classifying information. Information may be classified in one of the three designations listed below. If there is reasonable doubt which designation is appropriate, or whether the information should be classified at all, the less restrictive designation should be used, or the information should not be classified. " § § 1-102. 'Top Secret' shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security. § 1-103. 'Secret' shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security. § 1-104. 'Confidential' shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security." .. ~ ~- . 3·
  35. 35. '· .i 8 9 mai'ked as required ' and each document is stam ped with the proper classifioA.tiQn 10 designation. The documents bear a reference to the pertinent agency implementing regulations setting forth the reasons for prolonged classification11 and are also marked by section, part or paragraph as required by United States Department 8 Id., § 1-501. "At the time of original classification, the following shall be shown on the face of paper copies of all classified documents: (a) the identity of the original classification authority; (b) the office of origin; (c) the date or event for decl~sification or review; and (d) one of the three classification designations defined in § 1-1." · 1-502. "Documents classified for more than six years shall also be marked with the identity of the official who authorized the prolonged classification. Such documents shall be annotated with the reason the classification is expected to remain necessary, under the requirements of § 1-3, despite the passage of time. The reason for the prolonged classification may be stated by reference to criteria set forth in agency implementing regulations. These criteria shall explain in narrative form the reason the information needs to be protected beyond six years. If the individual who signs or otherwise authenticates a document also is authorized to classify it, no further annotation of identity is required;" and § 28 CFR § 17.59 (Effective December 10, 1980). 9 It should be noted that due to economy and efficiency considerations which the FBI employs in its internal processing procedures of FOIA/Privacy Act requests, the document copy released to the requester or plaintiff may or may not show the most recent classification markings that appear on the original document. 10 See footnote 7, supra. 11 FBI Foreign Counterintelligence Manual (FCIM), II, 1-2.4.2: Extension of cl~sification beyond six years. "(1) Foreign government information. The foreign government from which this information was received did not set a date for its declassification, and, therefore, classification is extended for up to 30 years. Declassification prior to that time could damage the confidential relationship which now exists with this foreign government and result in a decrease in cooperation and curtailment of the free exchange of information. (2) Intelligence activities, sources and methods. It is anticipat'ed that the activities, sources and methods will continue to warrant protection beyond six years and since no specific date is predictable when protection will not be warranted, classification is extended up to 20 years. Declassification prior to that time could inhibit ongoing collection of intelligence information, jeopardize identities of sensitive sources and expose valuable methods of gathering intelligence data to the detriment of our counterintelligence mission. (3) Foreign relations or foreign activities of the United States. The foreign relations and/or foreign activities of the United States are expected to continue beyond six years and to continue to require protection for an undetermined period of time up to 20 years. Decl~sification prior to that time could adversely affect United States foreign diplomatic policies, inhibit necessary diplomatic intercourse and constrain cooperation with foreign agencies and individuals relied upori for assistance in these types of matters." 4
  36. 36. and FBI Regulations; 12 Furthermore, the restrictive procedural criteria set forth in EO 12065, § 1-6, have been followed. 13 Lastly, I have determined that the classified material contained in the files addressed herein was processed in accordance with the guidelines established by Directive Number l, Information Security Oversight Office. 14 12 28 CFR § 17.63 (a). Paragraph or portion marking. "Each section, part or paragraph, of a classified document shall be marked to show the level of classification of the information contained in or revealed by it, or that it is unclassified. Portions of documents shall be.marked in a manner that eliminates doubt as to which of its portions contains or reveals classified information... ;" and FBI, FCIM, II, 1-2.5.2: Marking separate paragraphs. "Whenever portions of classified material require different levels of classification, i.e., multiple classifications, or a portion requires no classification, then each paragraph must be marked to show its classification or that it is unclassifi'ed. In marking individual paragraphs, the appropriate marking ('Top Secret,' 'Secret,' 'Confidential,' or 'Unclassified') should be typed in parentheses immediately following the paragraph in question. Abbreviations may be used (TS, S, C or U) ... " 13 EO 12065, § l-6, Prohibitions. -: 1-601. Classification may not be used to conceal violations of law, inefficiency, or administrative error, to prevent embarrassment to a person, organization or agency, or to restrain com petition. "§ l-602. Basic scientific research information not clearly related to the national security may not be classified. § § 1-603. A product of non-government research and development that does not incorporate or reveal classified information to which the producer or developer was given prior access may not be classified under this Order until and unless the government acquires a proprietary interest in the product. This Order does not affect the provisions of the Patent Secrecy Act of 1952 (35 U.S.C. § § 181-188). l-604. References to classified documents that do not disclose classified information may not be classified or used as a basis for classification. § § l-605. Classification mav not be used to limit dissemination of information that is not classifiable und~r the provisions of this Order or to prevent or delay the public release of such information. 1-606. No document originated on or after the effective date of this Order may be classified after an agency has received a request for the document undfjr the Freedom of Information Act or the Mandatory Review provisions of this Order (§ 3-5), unless such classification is consistent with this Order and is authorized by the agency head or deputy agency head. Documents originated before the effective date of this Order and subject to such a request may not be classified unless such classification is consistent with this Order and is authorized by the senior official designated to oversee the agency information security program or by an official with Top Secret classification authority. Classification authority under this provision shall be exercised personally, on a document-by-document basis. § !i 1-607. Classification may not be restored to documents already declassified and released to the public under this Order or prior Orders." 14 Directive Number 1, Information Security Oversight Office (ISOO) is the implementing directive for EO 12065 and is published in 43 Federal Register 46280, October 5, 1978, effective December 1, 1978. ... --. 5
  37. 37. (6) In my capacity as a declassification authority, I have determined that the classified portions of the files addressed by this affidavit continue to meet prescribed classification requirements at this time.15 ' 16 I have determined that the information contained in these documents does not give rise to a declassification review pursuant to EO 12065, S 3-303.17 (7) In paragraph (22) of this·affidavit will be found a description of the documents and the withheld classified portions of the documents. These portions are itemized and indexed to the appropriate classification requirement category of EO 12065, S 1-301. Also, factual descriptions of the contents of these portions that relate to an appropriate classification requirement are furnished. Lastly, where appropriate, the contents of these por_ tions will be correlated to one or more of paragraphs (9), (10), (11), (13), (14), (15), (16), (17), (18), (19) and (20), infra. 15 EO 12065, § 3-302. "When information is reviewed for declassification pursuant to this Order or the Freedom of Information Act, it shall be declassified unless the declassification authority established pursuant to S 3-1 determines that the information continues to meet the classification requirements prescribed in S 1-3 despite the passage of time." 16 The fact that a redacted copy of a document may show a classification marking crossed out is not to be construed as an indication that a declassification action has been taken. It simply indicates that the document in its redacted form contains no classified information, and the classification markings are not applicable and have been so denoted in a manner such as a stricken mark or cross mark (X), etc. 17 Id., S 3-303. "It is presumed that information which continues to meet . the classification requirements in § 1-3 requires continued protection. In some cases, however, the need to protect such information may be outweighed by the public inter.est in disclosure of the information, and in these eases the information should be declassified. When such questions arise, they shall be referred to the agency head, a senior agency official with responsibility for processing Freedom of Information Act requests or Mandatory Review requests under this Order, an official with Top Secret classification authority, or the Archivist of the United States in the case of material covered in§ 3-503. That official will determine whether the public interest in disclosure outweighs the damage to national .security that might reasonably be expected from disclosure;" and 28 CPR § 17. 37(b). Balancing test. "When determining whether the public interest in disclosure outweighs the damage to the national security that might be reasonably expected from disclosure, the head of the Office, Board, Division or BW'eau concerned should consider whether there exist any special circumstances so that the disclosure of the information would result in identifiable and significant benefit to the public. Such could include: (1} Saving of human life; (2) Avoidance of hostilities between sovereign powers; and (3) Accurate and appropriate public analysis of issues of national importance." ,~ .-- 6
  38. 38. These paragraphs describe the damage to the national security that could reasonably be expected to result from unauthorized disclosure of that particular category of classified information. My descriptions of these classified and withheld portions should be read in the context of the redacted form of the documents as released to plaintiffs. It is my judgment that any further specificity in the descriptions given in paragraph (22) would reveal the very information that must be kept secret in the interest of the security of the United States. DEFINITION OF FOREIGN GOVERNMENT INFORMATION (8) Some of the material addressed by this affidavit consists of Foreign Government Information. Foreign Government Information encompasses: (a) Information provided to the_United States by a foreign government, or international organization of governments, in the expectation, express or implied, that the information is to be kept in confidence; or (b) Information produced by the United States pursuant to a written joint arrangement with a foreign government or international organization of governments requiring that either information or the arrangement, or both, be kept in confidence. Such a written joint agreement may be evidenced by an exchange of letters, a memorandum of understanding, or other written record.18 CONSEQUENCES OF DISCLOSURE OF FOREIGN GOVERNMENT INFORMATION (9) As stated in paragraph (3), supra, EO 12065, § 1-303 provides that the unauthorized disclosure of foreign government information or the identity of a confidential foreign source is presumed to cause at least identifiable damage to national security. Cooperation by the intelligence services of friendly countries with the intelligence and security services of the United States continues only on the basis of an unoorstanding that such liaison relationships are conducted EO 12065, § 6-103. See also ISOO Directive Number 1 and 28 CFR 17.99. e--: .- ·- . 7
  39. 39. with absolute confidentiality. It must be recognized that most governments>unlike that of the United States, do not officially acknowledge the existence of certain intelligence and internal security services, much less the scope of their activities, the extent of their liaison with other countries or the type of information obtained by them. (10) The release of official documents by the United States which would ~vidence the existence and scope of activity of friendly foreign intelligence and security services would seriously strain relations between our Government and theirs. In addition, this action would sharply curtail or eliminate cooperation between the United States and friendly intelligence security services, resulting in a serious negative impact on both United States intelligence collection and security services' capabilities. The release of information which constitutes an official acknowledgment of the existence of intelligence or security liaison relationships with the United States, could cause serious embarrassment and harm to the government involved and could cause disruption of its diplomatic relations with other governments. While such relations may in some cases be widely reported, they are not officially acknowledged. Official acknowledgment of such relationships could force the government adversely affected to take some diplomatic steps in retaliation. (11) If the government from which certain information is received is not named in the material it supplies, the danger remains that the originating government is likely to recognize the information if released in the public domain as information it supplied in confidence and~ thereafter, be reluctant to entrmt the handling of its information to the discretion of the United States. In addition, the disclosure of information received in confidence by the United States from a friendly foreign government predictably will result in careful analysis o.f this information by hostile intelligence services. As a result, hostile governments that are the subject of this information may very well take diplomatic retaliatory steps against the friendly foreign government that supplied this ·inforf!lation and may also be able to pinpoint friendly foreign intelligence operations targeted against the foreign hostile government. Understandably, this would lead to the neutralization of friendly foreign intelligence methods or activities and possible death of live sources involved. For these reasons, information received from foreign governments must be handled strictly in accordance with the Understanding that the information may not be released outside official United States Governmen :: circles. "'~- . B
  40. 40. i DEFINITION OF INFORMATION CONCERNING INTELLIGENCE ACTIVITIES, SOURCES AND METHODS (12) EO 12065, § l-301, (c), recognizes that information concerning intelligence activities, sources and methods is classifiable with the requirement that e.n original classification authority must determine that the disclosure of this information could reasonably be expected to cause at least identifiable damage to the national security. Information concerning intelligence activities, sources and methods encompasses, inter alia,: ---- (a) Information that could reveal or identify a present, past or prospective intelligence source, whether a person, organization, group, technical system, mechanism or device that provides, has provided or is being developed to provide foreign intelligence, ~oreign counterintelligence domestic security or terrorist intelligence. (b) Information which could reveal or identify a present, past or prospective intelligence method, procedure, mode, technique or requirement used or being developed to acquire, transmit, analyze, correlate, evaluate or process foreign intelligence foreign counterintelligence, domestic security or terrorist activity or to support an intelligence source, operation or activity. (c) Information that could disclose the identities of Intelligence Community agency personnel operating undercover or of code or numerical designations used to protect such personnel or intelligence sources, methods e.nd activities. (d) Information pertaining to intelligence-related methodologies, '" techniques, formulae, equipment, programs or models, including computer simulations, ranging from initial requirements through planning, source acquisition, contract initiation, research, design and testing to production, personnel training and operational use. (e) Information that could identify research, procedures or data used in the acquisition and processing of foreign intelligence or counterintelligence or the production of finished intelligence, when such identification could reveal a particular intelligence interest, the value of the intelligence or the extent of knowledge ~~ ---of a particular subject of intelligence or counterintelligence interest.
  41. 41. (f) Information that could reveal, jeopardize or compromise a technical or mechanical device, procedure or system used or proposed for the collection of intelligence information, or the sites, facilities; equipment, systems operational schedules and technologies used or proposed for use in such collection or in the interpretation, evaluation and dissemination of collected information. An intelligence activity, source, or method requiring classification has two general characteristicts. First, the intelligence activity, source or method and information generated by it is. needed by the FBI to carry out its mission. Second, confidentiality must be maintained .yYith respect to the activity, source or method and information provided by it, if its viability and productivity and the usefulness of its information is to be preserved. CONSEQUENCES OF DISCLOSURE OF INFORMATION CONCERNING INTELLIGENCE ACTIVITIES, SOURCES AND METHODS (13) Disclosure of information concerning intelligence activities, sources and methods can result in damage to the national security in several ways. First, its disclosure could reveal the existence of a particular intelligence or counterintelligence investigation/operation. Disclosure could reveal or indicate the nature, objectives, requirements, priorities, scope or thrust of the intelligence or counterintelligence investigation. Disclosure could. identify data used in the acquisition and processing of intelligence or counterintelligence information and such identification could reveal a particular intelligence interest, the value of the intelllgence, or the extent of knowledge of a particular target of intelligence or counterintelligence interest. Disclosure could reveal a particular method utilized to obtain or process intelligence or counterintelligence information. Such disclosures would allow hostile entity assessment of both general and specific intelligence collection capabilities during a particular time frame, and hostile assessment of areas and ta~Jets which had been compromised or not compromised; allow countermeasures to be implemented, making future intelligence operations more difficult; and compromise other ongoing and planned intelligence operations.
  42. 42. (14) Another serious consequence of exposure of this category of information is that it can lead to exposure of the identities of intelligence sources. Exposure of an intelligence source's identity can result in termination of the source; discontinuance of the source's services; exposure of other ongoing intelligence gathering activities; modification or cancellation of future intelligence gathering activities; permitting hostile entities to evaluate the number and objectives of intelligence sources targeted against them, and take appropriate countermeasures; and an overall chilling effect on the. climate of cooperativeness with respect to intelligence ·. sources, both current and prospective, not willing to risk the probability of exposure with its potential effect of possible loss of life, jobs, friends, status, etc., all of which may reasonably be expected to hamper intelligence collection ability and result in identifiable damage to the national security. (15) T·he nexus between disclosure of the information described in .: paragraph (13), supra, and the resulting damage to the national security is generally understood and does not require further elaboration. However, I deem it useful to explain how disclosure of intelligence source information can lead to the identification of an intelligence source, with its resulting damage to the national security. Intelligence source information as generally found in FBI files consists not only of information reported .Ql the source, but specific and descriptive data about the source. This data about the source may involve not only the source's true name or alias, but other background information as well. Additionally, this specific information includes "singular identifiers," a term of art used in the intelligence field that refers to intelligence source code names, numerical designators, file numbers, etc. (16) Disclosure of an intelligence source's name, address, physical description .. or similar background data is almost certain to reveal the source's identity and needs no explanation. However, the nexus between .revelation of intelligence source code names, numerical designators and file numbers, and· exposure of the source's identity is not so obvious. A code name is a devised word used as a substitute for the identity of an intelligence source and serves to mask the identity of an intelligence source. Its use limits the knowledge of the source's identity to only those who actually possess knowledge of the correlation of the code name to the source's identity. Likewise, utilization of code names prevents the breach of security 11.
  43. 43. in an FBI counterintelligence investigation from being more serious than it otherwise might be should a document containing intelligence information fall into the hands of unauthorized persons. However, disclosure of code names in the aggregate makes it possible for a hostile analyst to attribute particular pieces of information to particular intelligence sources. Disclosure of an intelligence source's code name contained in a series of documents would allow a hostile analyst to correlate the documents and whatever information that can be gleaned from the documents (e.g., information found on the face of doc~.ments, such as date of the document, the office of origin, subject matter, plus any information disclosed from the body of the documents, such as names, dates, places, activity about which the source reported, etc.) to a particular source. The ~ccumulation of such information correlated to an intelligence source code name could result in exposure of the source's identity. By matching code names with bits and pieces of information, the hostile analyst, using deductive reasoning and inside knowledge, could discern the true identity of the intelligence source. (17) Numerical designators can either be unique intelligence source symbol numbers or simple numbers assigned to a source in a particular document or series of documents. (Source symbol numbers are assigned sequentially and are usually prefixed with the geographic location of the FBI Field Division from whence the source is operated). Intelligence source numerical designators are similar to code names in that they are used in place of an intelligence source's true name. The release of intelligence source numerical designators could result in revelation of source identities in the same manner described above regarding code names. (18) Individual file numbers are assigned sequentially to intelligence sources and relate to these sources much like symbol numbers or code names. Disclosure of an intelligence source's file number contained in a series of documents would allow the hostile analyst to correlate any information found in the documents to a particular source. The accumulation of such information channeled into the same intelligence source's file could result in exposure of the source's identity. (19) l will now turn to the question of how information reported bv an intelligence source can lead to the exposure of the source's identity. Information provided by anintelligence source is often of a "unique" character. For example, the source's report may contain details obtained from a one-on-one conversation
  44. 44. between the source and 81lother individual. It may relate to facts known to only a smBII group of individuals of which the source Is a member. It may be of such detail that it pinpoints a critical time frame or reflects a particular vantage point from Which the source was reporting. The source's report may have been furnished in such a m81lner so as to reveal a reporting style peculiar to the source. An intelligence 81lalyst can !like this type of iilformation 81ld, using it !Ike a Rosetta stone, combine it with facts already in his possession to identify the source. (20) Even information reported by an intelligence source that is not so unique In character can be used to identify the source, if disclosed. Information falling in this category includes but is not limited to: the date of an intelligence source report, the date of transcription of ~n intelligence source report, the target activity or subject matter of an intelligence source report, and specific information, such as the participants in a targeted activity. These seemingly innocuous pieces of information are extremely useful to the trained hostile intelligence analyst. Not only can he use them to uncover a particular intelligence or counterintelligence operat 1on, but he can also use these fragments of information to ciraw accurate . conclus1ons regard' mg · m · telligence source identities - much like an artist painting a mosaic or as one court has phrased it -like putting together pieces of a jigsaw puzzle. (21) I was cogmzant of the factors discussed above during my review . . ' of the matenal fall mg within the scope of plamtl s request• While each document . 'ff:, . . . addressed by this affJdavJt was revJewe d individually and independently, my clas. . . t ' j dgments were not made in isolation. In making these Judgments, • s1f1ca 1on u . hip with other 1 d ch piece of information according to Its rea1Ions I evaluate ea . . t' file· and where to ' , . . f informst Ion J'n the whole mvestiga •ve applicab~.e, pleces o . . . am of whlch the mves tigati ve file is a part. I have the counterintelbgence progr . tl in keeping with the spirit of classification to the matenal stric y .. sought to apply . sible while at the same o release as much information as pos , . the FOIA, so as t . hrough disclosure of information. . to the national security t time prevent damage . ffidavit were reasonably segregable . ents addressed by thiS a If por tions of the docum . ·r· d information, I endeavored to . t disclosmg class• te and could be released Wlthou . ould have resulted in the release have done otherwiSe w do so. In my judgment, to f hich could reasonably be expected . of classified information, th e disclosure o w to damage national security. 1.3
  45. 45. ITEMIZATION, INDEXING AND DESCRIPTION Qf CLASSIFIED INFORMATION WITHHELD FROM PLAINTIFFS PURSUANT TO 5 U.S.C. § 552 (b)O) (22) The documents classified and withheld from plaintiffs pursuant to 5 U.S.C. § 552 (b)(l) are itemized, indexed and described as follows: ·. 1.4
  46. 46. Document number 4, Dallas file number 44-1639, serial4195, is an airtel dated January 29, 1964, consisting of 1 page. The airtel was classified "Confidential" on November 10, 1980, by original Top Seeret Classification authority (OTSCA) Number 8383. The withheld classified information, further described below, meets the classification requirements of EO 12065, 1- 301, (c), and 1-302. The withheld classified portions confined to this page are paragraphs 3 and 4. These portions contain singular ~.dentifiers for an intelligence source. Due to the uniqueness of this information, a more detailed description could reasonably be expected to identify the source and result in identifiable damage as explained in paragraphs (13) through (20), supra. 1.5
  47. 47. Document number 5, Dallas file number 44-1639, serial 3540, is a m~~ morandum dated December 31, 1963, consisting of 1 page. The memorandum was classified "Confidential" on October 24, 1980, by OTSCA Number 1168. The withheld classified information, further described below, meets the classification requirements of EO 12065, 1-301, (c), and 1-302. The withheld classified portions confined to this page are ~ragraph 1, and lines 2 and 3 of the copy count. These portions contain singular identifiers for intelligence sources. ·. Due to the uniqueness of this information, a more detailed description could reasonably be expected to identify the sources and result in identifiable damage as explained in paragraphs (13) through (20), supra. . i.6 .
  48. 48. Document number 8, Headquarters (HQ) file number 44-24016, serial 491, consists of two communications. One is an airtel dated December 5, 1963, consisting of 1 page,and the other is an airtel dated November 29, 1963, consisting of 1 page with 2 pages of enclosures. The airtel dated December 5, 1963, was classified "Confidential" on November 12, 1980, by OTSCA Number 8383. The withheld classified information contained in this document meets the classification requirements of EO 12065, 1-301, (b), and 1-302. The withheld classified portions confined to airtel are paragraphs 2, 3 and 4. These portions contain information which was originated by a foreign government. Due to the nature of the information, a more detailed description could reasonably be expected to expose foreign government information and result · = in identifiable damage as explained in paragraphs (9), (10) and (11), supra. The airtel dated November 29, 1963, was classified 11 Confidential" on November 12, 1980, by OTSCA Number 8383. The withheld classified information contained in this document meets the classification requirements of EO 12065, 1-301, (b), and 1-302. The withheld classified portions are confined to airtel, page 1, paragraph 1; and enclosures, pages 1 and 2 in their entirety. These portions contain information which was originated by a foreign government. Due to the nature of the information, a more detailed description could reasonably be expected to expose foreign government information and result in identifiable damage as explained in paragraphs (9), (10) and (11), supra. . 17
  49. 49. Document number 9, HQ file numoor 44- 24016 , serial 564, is an airtel dated December 6, 1963, consisting of 1 page. This document was classified "Confidential" on November 12, 1980, by OTSCA Number 8383. The withheld classified information contained in this document meets the classification requirements of EO 12065, 1-301, (b), 1-302 and 1-303. The withheld classified portion confined to this page is paragraph 2. This portion contains information produced by the United States pursuant to a written joint arrangement with a forei~ government concerning a cooperative endeavor with a foreign government. Due to the nature of the information, a more detailed description could reasonably be expected to expose forejgn government information and result in identifiable damage as explained in paragraphs (9), (10) and (11), supra. 1B
  50. 50. Document number 10, Dallas file number 44-2064, serial 398, dated July 25, 1977, was released in its entirety without deletions. This document contains no classified information. -- .: 1.9
  51. 51. Docum-ent number 11, HQ file number 65-65405, serial 821, is an airteJ. dated December 11, 1963, consisting of 5 pages. This document was classified "Confidential" on October 24, 1980, by OTSCA Number 8383. The withheld classified information, further described below, meets the classification requirements of EO 12065, 1-301, (c), and 1-302. Of the 5 pertinent pages, the withheld classified portions are confined to page I, subject; and page 5, paragraphs 2 through 5. These portions contain information regarding an intelligence method and reveal the technique used in obtaining this information. Due to the specificity of the information, a more detailed description could reasonably be expected to identify the particular intelligence method and .. result in identifiable damage as explained in paragraphs (13) through (20), supra. :. -- ... 20
  52. 52. Document number 13, HQ file number 62-109060, serial 3447, consists of two communications. One is a letter dated July 8, 1964, consisting of 2 pages. The other is an airtel dated June 16, 1964, consisting of 8 pages and a letterhead memorandum (LHM) dated June 16, 1964, consisting of 2 pages. The letter was classified "Confidential" on November 13, 1980, by OTSCA Number 8383. The withheld classified information, further described below, meets the classification requirements of EO 12065, 1-301, (c), and 1-302. The withheld classified portions of the letter are confined to page 1, paragraphs 1 and 2; and page 2, paragraphs 1 and 4. These portions contain information furnished by an intelligence source. Due to the uniqueness of this information, a more detailed description could reasonably be expected to identify the source and result inidentifiable damage as explained in paragraphs (13) through (20), supra. The airtel and LHM were classified "Confidential" on November 13, 1980, by OTSCA Number 8383. The withheld classified information, further described below, meets the classification requirements of EO 12065, 1-301, (c), and 1-302. The withheld classified portions of the airtel and LHM are confined to airtel page 1, paragraphs 2 and 3 (continued on page 2); page 2, paragraph 1 and first 2 deleted portions under ''Informants" heading; LHM page 1, paragraphs 2, 3 and 4 (continued on page 2); and page 2, paragraph 1. The withheld classified portions of the airtel contain singular identifiers for an intelligence source. The withheld classified portions of the LHM contain information furnished by an intelligence source. Due to the uniqueness of this information, a more detailed description could reasonably be expected to identify the source and result in as explained in paragraphs (13) through (20), supra• .. -- identifis:~le damage
  53. 53. ·• This completE> the itemization, indexing and description of classifie<i .s material withheld under 5 U.S.C. S 552 (b)(l). I declare under penalty of perjury that the foregoing is true and cor rect. Executed on ~ 17 , 1981. M urice C. Hurst Sp cial Agent Federal Bureau of Investigation Washington, D. C. ·. 22
  54. 54. - £ J.HIB/1 L
  55. 55. ur.JtJ..J~L ·1 U~S<.;RIP'fiON NUMBER __...._. ,'--'V V j •UJ&t .L OF DOCUMENT '! PAGES ACT. 4{-1639-1343 IHouston (HO) tele- I 2 type to Dallas (DL) dated 12/4/63 RIL. 2 EXEMP- DELETION(S) TIONS Page 1, paragraph 1; paragraph 2, line 3; paragraph 4 J(b) (7) (D) Information which would identify a confidential source. CROSS '' REFERBNCE (18) (D) (2) i; 11 ~ Page 1, paragraph 2, line 1 - Confidential source symbol number. (b) ( 2) (b) (7) (D) (18) (B)! (18) (Q) (2) Page 1, all handwritten notes - Information which would identify a confidential source. (b) (7) (D) (18) Page 2, all excisions - Information which would identify a confidential source. (b) (7) (D) I . (18) (D) (2) 2 31 4 44-1639-5406 16/18/64 Agent memorandum to SAC 1 44-1639-4768 13/30/64 san Francisco (SF) airtel to DL 1 44-1639-4195 1 1/29/64 Miami (MM) airtel to DL 1 All excisions - Name and identifying data of a confidential source. (b) (7) (C) (b) (7) (D) (18) 1 Page 1, paragraph 1- Information which would identify,(b) (7) (C) a confidential source (See Footnote number 1) (b) (7) (D) (18) (18) ' : I! ~ ! ! (D) ( 2) l ! J l ' (C) (3) (18) (D) :(1) I: !I (C) ·(3) (1) (~) I ~ ; 1 Page 1, all exicisons - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. (b) (1) (18) (A) I ·~ .... 5 / ..J 44-1639-3540 44-24016-847 page 329 12/31/63 Agent em or an durn to SAC, DL 1 FD-302 concerning phone records 1 • 1 Pursu 1 inform ,;(t a true -~ i ., , to an appeal from another individual, ion from this document was releas b1e. py of that i em consistent with t " 1 1 Page 1, all excisions - Currently and properly classified. See attached affidavit of SA Maurice Hurst. c. Page 1, paragraph 1 - Name of a confidential source. (b) (1) .' q (18) (A,) ' "' ' ' :t I . ~ ~ (b) (7) (C) (18) (C) (3) l Page 1, paragraph 2- Name and information concerning ICb) (7) (C) 1<18) (C)(2) a third party • t number 3 was re-reviewed by OPIA and it was determi e, this document has been re-processed and the attach f that administrative appeal. I that mar copy r esents! I J I I I I
  56. 56. - ~ ...... """'~''""' NUMBi.:R .7 NUHB ER 4 ~ -24016-847 pa.ge 330 ION OF DOCUMENT PAGES ACT. REL. EXEMPTIONS DELETION(S) (b) f7) U!!' . ' ' (b) (7) (D ) (b ) (7) (C } Page 1, paragraph 1 - Name of a confidential source • FD-302 concerning phone records Page 1, paragraphs 2 and 3 - Names and information concerning third parties. ICROSS REFERENCE (18) (C) (3) (18) (D) (1) (18) (<;) . (2) ll . 1 8 14~-24016-491 I 144-24016-491 112/5/63 Director airtel to DL ~ 9 10 11 / ( 2 144-24016-564 144-2064-398 112/6/63 DL airtel to Director 17/2 5/77 Routing Slip to DL, New rleans (NO) and ashington Field ffice (WFO) 165-65405-821 112/11/63 airtel (Page 5 only) 162.-109060Not recorded .after 5060 4/17/67' Internal memorandum I 3 I 1 IPage 1, paragraph 1- Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. l(b)(1) Pages 2 and 3 - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. 111/29/63 Ottawa airtel to Director with attachment below I (b) Cl> !Page 1, all excisions- Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. ICb)(l) (18) <~> II . I I I I I I 1 1 I 1 1 1 Page 1, paragraph 2 - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. I I 1 (18) <t>; I I . I (18) (~) ! i i I I I I I (b) (1) (18) (~) I . I l l I i 1 I None Released in its entirety. I i l I .. l •. I I1 I1 I I I 2 2 IAll e xcisions currently and properly classified. attached affidavit of SA Maurice c. Hurst. See I (b) (l) Pages 1 and 2, all excisions - Names and information concerning third parties. I (b) (7) (C) (18) (A) iI . '~ (18) (C) (2) i I , l I I t ! . .I. ~ ,..., .. Il I I I I : I I ' i I ·. -
  57. 57. TION OF DOCUMENl' ·13 2 PAGES ACT. REL. DELETION(S) EXEMPTIONS I: 7/8/64 Hoover letter to J. Lee Rankin with attachments 8 8 Page 1, paragraphs 1 and 2 - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. (b) (1) Page 2, paragraphs 1 and 4 - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. (b) (1) Page 3, paragraphs 2 and 3 - Currently and properly classified. See attached affidavit of SA Maurice C. Hurst. 6 2--10906034. 1:. 7 (b) (1) I I I (18) INone I (b) (1) Page 7, paragraph 2, line 2; ·paragraph 3, lines 1 and I (b) (7) (C) 7 - Name of a Government employee. 'l'l i (18) Page 6, paragraphs 2, 3 and 4- Currently .and properlyl(b) (1) classified. See attached affidavit of SA Maurice C. Hurst. .. I (18) (J); I (b) (1) Page 7, lines 1- 3 and paragraph 1 - Currently and properly classified . See attached affidavit of SA Maurice c. Hurst. (~)! I Page 4 second excision under informants- Source file l(b) (2) number. (b) (7) (D) t (18) l(b) (1) Page 5 - Released in its entirety. UH ; Page 4, first two excisions under informants currently and properly classified. See affidavit of SA Maurice C. Hurst. • (18) i Page 4, lines 1-8 and paragraph 1- Currently and properly classified. See attached affidavit of SA Maurice c. Hurst. ~ t ICROSS ' REFERENCE 'l' (18) (B) ! (18) '1' ~~~~. (18) (I) ' ! I I I I I (18) (AI) ~ I I I ' !l ! ; (18) (C) (1) I iI I I ·. ~ .
  58. 58. IJVV Ul"LUUJ. NUMBER 0J.<: JU AL -- NUMBER DESCHIPTION OF DOCUMENT PAGBS ACT. REL. DELETION(S) Page 7, paragraph 2, lines 4-8~ paragraph 3, lines 2 and 3 - Information concerning a third party. (See Footnote number 2) EXEMP- TIONS (b) (7) (C) Page 8 - Released in its entirety. . ,...'1re { _em to the appea~ of plaintiff to t rmat ion relea ed than. the copy at i stent with t e mandates of his ent Agency, page 7 of this document was provided to ntiffs complaint. The attached page 7 represents a tr appeal. intiff wit.lh copy of tlhat I ' l I I II ! ! J ' I ·-
  59. 59. ..

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