DONALD F. GOLDBERG, PETITIONER V. UNITED STATES DEPARTMENT OF STATE

   No. 87-655

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Brief for the Respondent in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-17a) is reported
at 818 F.2d 71.  The opinion of the district court (Pet. App. 21a-52a)
is unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 18a-19a) was
entered on May 8, 1987, and a petition for rehearing was denied on
July 24, 1987 (Pet. App. 20a).  The petition for a writ of certiorari
was filed on October 22, 1987.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the district court correctly granted summary judgment in
favor of the Department of State in this suit under the Freedom of
Information Act seeking classified documents that were withheld under
Exemption 1 of the Freedom of Information Act, 5 U.S.C. 552(b)(1).

                               STATEMENT

   1. On October 13, 1982, the Department of State sent an
unclassified questionnaire by cable to all United States foreign
missions and embassies throughout the world, seeking information
concerning security and diplomatic practices encountered in foreign
countries.  The purposes of the questionnaire were to establish a data
base regarding these practices, including the status of reciprocity
between the United States and each foreign country, and to help
establish which issues should be of priority concern to the Department
of State.  Pet. App. 3a, 22a-23a.

   On June 5, 1984, petitioner, a staff writer for columnist Jack
Anderson, filed a request under the Freedom of Information Act (FOIA)
for, inter alia, the responses of United States foreign embassies and
missions to the October 13, 1982, questionnaire.  On March 26, 1985,
the Department of State informed petitioner that it had located 161
documents responsive to his FOIA request.  Four of those documents
were released in full, nine were withheld in full, and the remaining
148 were released with portions withheld.  As relevant here, the
Department of State based the withholdings on Exemption 1 of the FOIA,
which applies to matters that are "specifically authorized under
criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy" and "are in fact
properly classified pursuant to such Executive order" (5 U.S.C.
552(b)(1)). The information at issue in this case was classified
pursuant to Section 1.3(a) of Executive Order No. 12,356, 3 C.F.R. 166
(1983), which provides for the classification of information that
concerns "the vulnerabilities or capabilities of systems,
installations, projects, or plans relating to the national security;
* * * foreign government information;  * * * (and) foreign relations
or foreign activities of the United States." See Pet. App. 2a, 3a,
23a.  /1/

   2. a. After the Department of State partially denied petitioner's
FOIA request, petitioner filed this suit in the United States District
Court for the District of Columbia seeking release of the documents
and excerpts withheld.  The Department of State filed a motion for
summary judgment, which was supported by a Vaughn index /2/ in the
form of a 112-page declaration of John Eaves, the Director of the
Office of Mandatory Review in the Classification and Declassification
Center of the Department of State (C.A. App. 217-333).  As the court
of appeals stated (Pet. App. 4a n.3), under governing State Department
regulations, Eaves was specifically authorized to classify and
declassify national security information.  The Eaves declaration
divided the material into six groups according to subject matter, such
as security measures at each embassy or mission, relations between our
government and the host government, and issues of diplomatic
reciprocity.  The declaration identified the documents or redactions
in each category, described the information withheld, and set forth
the basis for the classification under Executive Order No. 12,356.
See Pet. App. 4a-5a & n.3, 24a-25a, 33a-35a.

   Mr. Eaves stated in the declaration that many of the responses were
originally designated as unclassified when they were received by the
Department of State, reflecting the fact that the questionnaire itself
was not classified (C.A. App. 221).  However, Mr. Eaves explained that
"(b)ecause of the likelihood that disclosure of some of the contents
would cause damage to the national security," he reviewed each
document that was covered by petitioner's FOIA request and classified
those portions that warranted classification (ibid.).  Section 1.6(d)
of Executive Order No. 12,356 specifically provides that
"(i)nformation may be classified or reclassified after an agency has
received a request for it under the Freedom of Information Act * * *
if such classification meets the requirements of (the) Order and is
accomplished personally and on a document-by-document basis by (the
designated agency official)." Pet. App. 5a n.4, 12a, 15a, 26a.
Petitioner argued, however, that because many of the questionnaire
responses were returned to the Department of State marked
"unclassified," there was a genuine issue of material fact as to
whether the material withheld was properly classified by Eaves (id. at
36a-37a).

   b. The District Court granted summary judgement in favor of the
Department of State (Pet. App. 21a-52a).  Quoting the test established
by District of Columbia Circuit precedent, the court stated that

         an agency is entitled to summary judgment if its affidavits
      "describe the withheld information and the justification for
      withholding with reasonable specificity, demonstrating a logical
      connection between the information and the claimed exemption" .
      . . and "are not controverted by either contrary evidence in the
      record nor by evidence of agency bad faith.

   Pet App. 32a (quoting Abbotts v. NRC, 766 F.2d 604, 606 (D.C. Cir.
1985), and Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.
Cir. 1981)).  Here, the court found that the Eaves declaration
"easily" satisfied the Abbotts test, because it "describes both the
material withheld and the justifications underlying those withholdings
with particularity, and it amply demonstrates the connection between
the information withheld and the exemption claimed in a
non-conclusionary fashion" (Pet. App. 35a-36a).  Thus, the court
agreed with the Department of State that information regarding
security measures at foreign embassies and other posts "clearly
concerns the vulnerabilities of U.S. installations and is of an
obviously sensitive nature";  that "(r)esponses pertaining to
relations between the U.S. Government and host governments fall
squarely within the language of Executive Order 12,356" because
"disclosure might create tension in foreign relations and would be
viewed as a breach of international diplomatic norms";  and that
"information regarding issues of reciprocity implicate U.S. foreign
relations and the foreign activities of this country" and, if
disclosed, "could undermine ongoing negotiations by revealing United
States priorities and concerns" (Pet. App. 34a-35a).

   The district court noted, however, that petitioner did not actually
challenge the adequacy of the Eaves declaration itself under Abbotts,
but instead contended that the affidavit was "controverted by * * *
contrary evidence in the record" within the meaning of the latter
portion of the Abbotts formulation.  /3/ The contrary evidence upon
which petitioner relied was the fact that many of the responses to the
questionnaire had been designated as unclassified before they were
received by the State Department from the various embassies and other
posts.  The district court found this argument "misplaced" for two
reasons (Pet. App. 36a-41a).

   First, the court was not prepared to say that the foreign post was
in a better position than Mr. Eaves to assess the relative importance
of the information to the national security interests of the United
States.  To the contrary, "(g)iven Eaves' responsibilities, and the
fact that it is the State Department which directs the activities of
U.S. diplomatic posts, and not vice versa, the (c)ourt (saw) no reason
to assume that Eaves' decision to classify the responses at issue here
(was) improper simply because it (was) different from the intitial
determinations of the ambassadors" (Pet. App. 38a).  More
fundamentally, however, the court concluded that petitioner's argument
"seriously denigrates the authority given to persons such as Eaves
under Executive Order 12,356, which allows for the reclassifications
of information to (a) higher level of confidentiality" (id. at 39a).
In its view, if the courts adopted a rule under which the original
classification status of the information casts sufficient doubt on the
propriety of a later classification decision to require a trial on the
validity of the latter, the result would be to "penalize() agencies
for exercising their legitimate authority under the executive order"
and to create an incentive to overclassify information (id. at 40a).
Accordingly, the court held that "(t)he mere fact that the information
was at one time marked 'unclassified,' without more, is insufficient
to preclude summary judgment for the government" (id. at 41a).  /4/

   3. A unanimous panel of the court of appeals affirmed (Pet. App.
1a-17a).  Like the district court, the court of appeals recognized
that the agency bears the burden of justifying the withholding, that
the agency's supporting affidavit on the classification questions is
entitled to "substantial weight," and that the adequacy of the
affidavit is to be judged under the test the court had previously
applied in Abbotts and similar cases (id. at 7a-8a, 10a, 31a).  And
like the district court, the court of appeals found that the Eaves
affidavit explaining the current classification status of the
documents complied with the Abbotts requirements, because it
"demonstrates a careful, document-by-document and answer-by-answer
review" (id. at 10a-11a & n.7).

   Indeed, the court noted that, as in the district court, petitioner
did not actually challenge the adequacy of the Eaves affidavit,
standing alone, but rather contended that it was "'controverted by * *
* contrary evidence in the record'" (Pet. App. 10a (quoting Abbotts,
766 F.2d at 606)) -- namely, the original classification status of the
questionnaire responses.  But the court of appeals also rejected that
argument (Pet. App. 14a-17a).  The court noted that the "unclassified"
label was attached to the documents by the ambassadors "without a hint
as to their rationales for arriving at such a classification," and
that, as the Eaves declaration stated, that designation might have
been attached because the questionnaire itself was unclassified (id.
at 15a).  But even assuming that the earlier designations were the
product of conscious decisionmaking, the court concluded that "the
State Department's burden in this case did not extend to explaining
why its reclassification decision departed from the prior unexplained
decisions of tis ambassadors" (id. at 16a (emphasis in original)).
The court said that in view of the express authority under the
Executive Order to reclassify information, the prior classification
status of the information does not raise an issue of material fact
precluding the entry of summary judgment with respect to the validity
of the current classification status (id. at 15a-16a).  The court
explained (id. at 16a-17a):

         In order to controvert a reclassification decision, a POIA
      petitioner must do more than point to evidence that the
      information sought was at some previous time classified
      differently.  His contrary evidence must somehow undermine or
      call into question the correctness of the classification status
      of the withheld information, or the agency's explanation for the
      classification.  The Eaves affidavit carefully explained why
      certain portions of the documents were properly classified and
      (petitioner's) evidence simply does not controvert those
      explanations.

                               ARGUMENT

   The decision of the court of appeals is correct and does not
conflict with any decision of this Court or of another court of
appeals.  Both courts below, applying settled legal principles, simply
concluded that on the basis of the extensive Eaves affidavit and the
remainder of the record in this case, the Department of State was
entitled to summary judgment.  That fact-bound disposition does not
warrant review by this Court.

   1. The courts below applied legal principles that have been
fashioned by the Court of Appeals for the District of Columbia Circuit
in the course of its extensive experience with FOIA Exemption 1 cases.
 Under the 1974 amendments to Exemption 1, the district court conducts
de novo review of the agency's decision to withhold information;  the
agency bears the burden of justifying the withholding;  and the
agency's classification decision and supporting affidavit are entitled
to "substantial weight." See Pet. App. 7a-8a, 10a, 31a-32a, citing,
inter alia, Afshar v. Department of State, 702 F.2d 1125, 1131 (D.C.
Cir. 1983);  Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir.
1982);  Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981);  Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert.
denied, 446 U.S. 937 (1980);  Goland v. CIA, 607 F.2d 339, 352 (D.C.
Cir. 1979), cert. denied, 445 U.S. 927 (1980);  Ray v. Turner, 587
F.2d 1187 (D.C. Cir. 1978).  Petitioner does not disagree with these
principles;  in fact he expressly endorses the first two (Pet. 13) and
simply omits any mention of the courts' correlative duty to give
substantial weight to an agency's affidavit, such as the Eaves
declaration.  In reviewing the adequacy of the Eaves declaration, both
courts below extensively discussed and expressly applied the test
followed by the District of Columbia Circuit in the very decisions
upon which petitioner relies (Pet. 20-21), including Abbotts and King
v. United States Department of Justice, 830 F.2d 210, 217 & nn. 61, 62
(1987).  See Pet. App. 10a, 11a-12a, 32a, 35a-36a.  This case
therefore presents no question concerning the proper legal standards
to be applied by a court in a case arising under FOIA Exemption 1.

   2. Petitioner contends only that both courts below misapplied these
settled legal principles in the particular circumstances of this case.
 Even then, he does not argue that the exhaustive Eaves declaration
was insufficient under Abbotts to justify the current classification
status of the documents or the entry of summary judgment in favor of
the Department of State.  And it is plain that, as the declaration
explained, the questionnaire responses -- to the extent they discussed
the security of a United States embassy or other diplomatic posts
abroad, an embassy's assessment of our government's relations with the
host government, or matters of diplomatic priority and reciprocity
with the host government -- are properly classified under Section
1.3(a) of the Executive Order:  such information clearly concerns "the
vulnerabilities or capabilities of systems, installations, projects,
or plans relating to the national security;  * * * foreign government
information;  * * * (and) foreign relations or foreign activities of
the United States." See Pet. App. 11a n.7, 34a-35a.

   Petitioner merely renews the argument that, despite the Eaves
declaration, the fact that many of the questionnaire responses were
designated as unclassified when they were first sent to the State
Department creates a genuine issue of material fact regarding the
correctness of the current classification status.  This contention,
which clearly does not warrant further review in any event, was
correctly rejected by the courts below:  the prior classification of
the documents by ambassadors and other officials in foreign diplomatic
posts does not, despite repeated assertions (see Pet. 6, 8, 10-11,
22), create any genuine issue of fact as to the correctness of the
Eaves classifications.

   It was the responsibility of Eaves to impose consistency on the
classification status of the responses.  Section 1.6(d) of Exec. Order
No. 12,356 expressly authorizes an official presented with an FOIA
request for sensitive material to classify information that is not
then classified, and Eaves properly invoked that express authority in
this case.  /5/ More basically, it is the responsibility of the
Department of State in Washington -- not of the various diplomatic
posts abroad -- to make the final determination regarding what
information should and should not be classified.  The Secretary of
State has the authority to make final classification determinations
regarding documents that are subject of FOIA requests, and Eaves, as
the Director of the Department of State's Classification and
Declassification Center, was the person to whom the Secretary had
delegated his authority.  It was Eaves -- not the ambassadors and
other diplomatic personnel at their scattered posts -- who had the
broad overview, experience, and responsibility necessary to evaluate
documents that were responsive to petitioner's FOIA request and to
make a consistent and reasoned determination regarding what
information should be classified in the interest of national security
and foreign policy.

   The fact that some ambassadors, for unexplained reasons, reached
different classification decisions than Eaves reached does not, in any
event, suggest any factual dispute whatever.  Different
classifications may reflect different judgments concerning the dangers
of disclosure.  Resolution of such differences is the responsibility
of the Department of State, not of a court.  The mere existence of a
disagreement between officials of the same department with different
levels of responsibility for a matter obviously cannot be enough to
create a triable issue.

   Here the Department of State's burden, once it chose to classify
and withhold some of the documents sought by petitioner, was to submit
a detailed and particularized declaration explaining the bases for the
classification.  The Department of State met this burden.  The fact
that classification changes were made does not and should not, without
more, create a triable issue of fact, especially where, as here, there
was no explanation of the prior classification status by the
ambassador or other sending official.  As the district court and court
of appeals observed, such a rule would penalize the agency for
exercising its express authority under the Executive Order to
reclassify information and would create a powerful incentive to
overclassify information at the outset (Pet. App. 12a, 40a).  It would
also invite the courts to resolve disagreements that should be
resolved within the execuitve department concerned.  Here, the court
of appeals correctly ruled that, in order to challenge the
classification decision, petitioner was required to submit "more
direct or extrinsic evidence" that the current classification status
is incorrect (id. at 16a).  But petitioner submitted no such evidence
in this case.  For this reason the court of appeals observed (id at
17a (emphasis in original)):

         Thus, we cannot accept (petitioner's) argument that the
      affixing of conclusory "unclassified" labels on responses to an
      unclassified questionnaire by itself controverts a detailed
      review and explanation that some parts of those documents are
      properly classified.

   3. Petitioner contends (Pet. 10) that the effect of the court of
appeals' decision is to "abandon any meaningful role in Exemption 1
cases." This contention is wholly without merit.  The State Department
furnished the extensive Eaves declaration for the very purpose of
facilitating the exercise of meaningful role by the district court,
and the opinions below demonstrate that both courts closely examined
that declaration and the application of relevant Execuitve Order
provisions to the information at issue.  Petitioner, by contrast,
submitted an affidavit of questionable admissibility that contained
only impressions based on unsupported hearsay.  See note 4, supra.
Petitioner did not respond to the Eaves declaration with any evidence
that pertained to the specific documents in this case, although the
court of appeals made clear that petitioner could have challenged the
classification decision if he produced "more direct or extrinsic
evidence" that the Eaves classification was improper.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   JOSEPH E. DIGENOVA

      United States Attorney

   JOHN D. BATES

   R. CRAIG LAWRENCE

   MICHAEL L. MARTINEZ

      Assistant United States Attorneys

   FEBRUARY 1988

   /1/ The Department of State also withheld five documents under FOIA
Exemptions 2 and 3, 5 U.S.C. 552(b)(2) and (3), but those withholdings
are not at issue here.  Pet. App. 3a-4a n.2.

   /2/ See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974).

   /3/ As the court of appeals observed (Pet. App. 12a), petitioner
did not contend that there was "evidence of agency bad faith" under
the Abbotts formulation.

   /4/ In opposing the government's motion for summary judgment,
petitioner also submitted an affidavit stating that he had been told
by the General Services Administration's Information Security Office
that "'there is a tendency to overclassify' cable messages" and that
foreign embassies often "err on the side of caution" in classifying
information (C.A. App. 118-121).  The Department objected to the
affidavit on the ground that it was based on another person's opinion,
not petitioner's personal knowledge, and was replete with unsupported
hearsay.  The district court was "similarly troubled by the
inadequacies of (petitioner's) affidavit and (did) not which to
condone such submissions," but it was willing to accept the averments
for purposes of ruling on the government's motion because they did not
alter the court's conclusion that the State Department was entitled to
summary judgment (Pet. App. 27a n.1).  The court of appeals likewise
found the affidavit unpersuasive because it was nothing more than an
expression of opinion by an official of another agency regarding the
care exercised by diplomatic personnel generally and did not
controvert the explanations in the Eaves declaration as to why the
document excerpts were properly classified (id. at 13a-14a n.8).
Petitioner does not challenge the determination by both courts below
that his affidavit, even if admissible, was unpersuasive.

   Petitioner also speculated in the district court that some of the
information at issue might have been disclosed in a 1985 report by a
State Department advisory committee discussing overseas embassy
security or in congressional hearings on that subject.  However,
petitioner offered no factual support for this contention.  The
district court dismissed it as "(u)nsubstantiated guesswork" (Pet.
App. 49a-51a), and the court of appeals did not address the point.  In
this Court, petitioner does refer in passing to his prior suggestion
that some of the information might have been made public (see Pet. 6).
 But because the issue is not mentioned in either the questions
presented or the argument portion of the certiorari petition,
petitioner apparently has abandoned that basis for opposing summary
judgment in the district court as well.

   /5/ Of the original responses submitted to the Department of State
in response to the unclassified questionnaire, seven responses were
marked "confidential," 35 were marked "Limited Official Use," and the
remainder either were not classified or were marked "unclassified"
(Pet. App. 5a n.4).  Portions of some responses originally marked
"Confidential" or "Limited Official Use" were released in part after
Eaves' review.  Thus, not only did Eaves classify information that
previously was not classified;  he also declassified information that
some ambassadors had originally classified as confidential or
designated as for limited use only.  See Pet. App. 5a n.4.