Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 1 of 55 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE NATIONAL SECURITY ARCHIVE FUND INC 2130 H Street NW Suite 701 The Gelman Library Washington DC 20037 Plaintiff Case No 21-3358 v UNITED STATES DEPARTMENT OF DEFENSE 1000 Defense Pentagon Washington DC 20301-1000 Defendant COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Plaintiff National Security Archive Fund Inc the Archive has waited for years for Defendant United States Department of Defense DOD to decide fifty-one administrative appeals seeking the release of agency records under the Freedom of Information Act FOIA 5 U S C § 552 Nearly half of these appeals 25 of 51 were filed from 2010–11 and have now been pending for more than ten years without a decision and all but two 49 of 51 are at least five years old Approximately half of the records being sought moreover are now more than fifty years old and thus subject to presumptive automatic declassification under Executive Order 13529 The Archive therefore brings this action to compel DOD to timely process these appeals and to declassify and release the records at issue JURISDICTION AND VENUE 2 This Court has jurisdiction under 5 U S C § 552 a 4 B and 28 U S C § 1331 3 Venue lies in this district under 5 U S C § 552 a 4 B and 28 U S C § 1391 e 1 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 2 of 55 PARTIES 4 Plaintiff National Security Archive Fund Inc is a not-for-profit corporation located at George Washington University established to promote research and public education on U S governmental and national security decision-making and to promote and encourage openness in government and government accountability 5 Defendant United States Department of Defense is an Executive Branch Department of the United States Government and an agency within the meaning of 5 U S C § 552 f It has possession and control over the records sought by Plaintiff OVERVIEW OF THE ARCHIVE’S FOIA APPEALS 6 The Archive is the world’s largest nongovernmental library of declassified documents and has published more than one million pages of declassified records acquired through FOIA Archive analysts file more than 1 000 FOIA requests annually and publish numerous document sets briefing books and other publications for dissemination to the public 7 The appeals in this case stem from a series of declassification requests filed since the 1990s by Dr William Burr Senior Analyst at the Archive and director of the Archive’s nuclear security documentation project This project seeks to document major elements of the U S nuclear posture including deployments of weapons systems war plans and targeting command and control of nuclear forces and arms control and to make such declassified information widely available to scholars and the interested public 8 The original FOIA requests underlying the appeals at issue here were made to DOD or other agencies including the National Archives and Records Administration NARA and the Department of State In each case however the resulting appeal was either made directly to DOD or transferred to DOD from another agency 2 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 3 of 55 9 The fifty-one administrative appeals at issue each of which is described in detail below were made to DOD between February 24 2010 and November 1 2017 10 In or around December 8 2020 DOD began inquiring whether the Archive remained interested in its outstanding FOIA requests DOD made such inquires with respect to Appeals Numbers 1–51 below 11 In response the Archive informed DOD via email on January 15 2021 that it remained interested in Appeals 1–51 below 12 In early May 2021 the Archive began resubmitting to DOD its outstanding FOIA requests that were greater than six years old in order to avoid any statute of limitations problem in a future legal action Specifically the Archive resubmitted the requests described in Appeals 1–16 18 20–23 29–37 and 39–41 below 13 On May 5 2021 DOD’s FOIA Public Liaison Ms Tonya Fuentes requested a meeting with Dr Burr to discuss the new FOIA requests that were duplicates of prior cases that were still open on appeal and informed him that the issue of DOD’s failure to process the Archive’s outstanding appeals had been assigned to the Deputy Chief of DOD’s FOIA division Pamela Andrews 14 On May 6 2021 Deputy Chief Andrews informed Dr Burr that refiling requests was unnecessary and that any new requests would be put at the end of the queue She further stated that the old requests and pending appeals would be processed as a priority Finally Deputy Chief Andrews represented in this conversation that the statute of limitations would not bar litigation on the administrative appeals referenced herein and took the position that the statute of limitations had not begun to run because the pending appeals had not been processed or completed as required by law 3 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 4 of 55 15 In reliance on this discussion with Deputy Chief Andrews Dr Burr submitted a “Request Closing Letter” via email to Deputy Chief Andrews on May 7 2021 stating that “Per our May 6 2021 phone call regarding several National Security Archive duplicative requests I am providing this notice that the following requests which were filed between 1995 and 2008 and have been pending on appeal can be closed ” He thereafter listed the requests described in Appeals 1–16 18 20–23 29–37 and 39–41 below 16 Aside from DOD’s communications with the Archive regarding continued interest in outstanding requests and resubmission of the same the most recent substantive communication relating to each of these appeals—either DOD’s acknowledgement of receipt its request for an extension of time to process the appeal notice to the Archive of an appeal being transferred from another agency to DOD or as to certain appeals where the Archive received no response the date on which it submitted the appeal—is identified below 17 To date as to each of the fifty-one appeals described below DOD has neither denied the appeal nor released any additional records 18 DOD’s extreme delay in processing FOIA appeals is not a problem unique to the Archive rather it is part of a pattern or practice of untimely processing of FOIA requests and appeals resulting in a large and growing backlog of unprocessed appeals 19 From 2010 to 2020 DOD closed each fiscal year with an average of 752 backlogged appeals The number of backlogged appeals grew from 657 in 2010 to 954 by the end of 2020 20 In 2016 DOD recorded its highest number of backlogged appeals during the 10- year period with approximately 1 016 backlogged appeals 4 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 5 of 55 21 Most recently in fiscal year 2020 DOD’s number of backlogged appeals increased by 7% from 889 at the end of 2019 to 954 at the end of 2020 THE ARCHIVE’S 51 OUTSTANDING APPEALS TO DOD 1 JCS History on the SIOP Archive Request No 2001144DOD106 Agency Case No 02 F-0379 22 By letter dated December 18 2001 the Archive sought disclosure of 23 • “The SIOP Controlling Nuclear Escalation which is the top-secret annex to the History of the Joint Chiefs of Staff and National Policy 1969-1972” 1991 • Any chapter on nuclear policy or NATO issues in the “The Joint Chiefs of Staff and National Policy Vol XI 1973-1976 On December 31 2009 DOD’s Office of Freedom of Information OFI released three documents while withholding additional documents as classified 24 The Archive appealed on February 24 2010 seeking declassification and release of the withheld material 25 On March 11 2010 DOD requested an extension citing a heavy FOIA workload 2 Copy of Contractor Study on Trade with China 1998 Archive Request No 980087DOD021 Agency Case No 98-F-0884 26 By letter dated February 23 1998 the Archive sought disclosure of 27 • “Chinese Contingencies and U S Opportunities ” by Peter W Colm et al Institute for Defense Analyses May 1970 Study P842 Contract Number DAHC-68-C-0152 • A report by Browne and Shaw Research Corp Waltham MA “Trade Controls and the Communist Chinese Strategic Weapons Program ” July 1968 contract no DAHC15-67-C-0174 On February 25 2010 DOD informed the Archive that it had located two responsive documents but was withholding the second document as classified 5 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 6 of 55 28 The Archive appealed on March 3 2010 seeking declassification and release of the withheld material 29 On March 22 2010 DOD requested an extension citing a heavy FOIA workload 3 Documents from Accession 330-79-0034 ISA Records for 1976 Archive Request No 970117DOD019 Agency Case No 97-F-1434 30 By letter dated August 4 1997 the Archive sought disclosure of • Box 1 1 File 334 NPG a Memo 12 14 76 The Balance of Nuclear Forces – SD 161 2 File 350 05 a Memo to Admiral Holcomb with Inclusion 3 12 76 Beecher article on President’s “Secret Pledge” to PRC Concerning Taiwan 3 File 381 a Memo to Chairman of JCS 9 30 76 Nuclear Exchange Simulations 4 File China 337 a Memo to SecDef with copy of information paper 3 24 76 Meeting with Gates – Chief Designate U S Liaison Office Peking 31 On February 18 2010 DOD informed the Archive that a total of four documents 171 pages were located as responsive to the Archive’s initial request However the excised information in the released documents was determined to have been exempt from release because it was allegedly properly classified in accordance with Executive Order 12958 as amended Specifically DOD cited Section 1 4 a concerning military plans weapons or operations Section 1 4 b concerning foreign government information Section 1 4 c concerning Intelligence activities and Section s 1 4 d - h as grounds for exemption 32 On April 13 2010 the Archive filed an administrative appeal under FOIA seeking further review of the exempted material so that it could be determined whether the 6 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 7 of 55 document may be released The Archive requested that the reviewers of the appeal take into consideration previously declassified information that may be relevant to excised portions of the released documents The Archive identified several instances in which the excised information was connected to already declassified documents 33 On March 26 2010 DOD requested a time extension to complete the Archive’s administrative appeal citing an extremely heavy FOIA workload as justification 4 State Department Records on National Security Study Memorandums Archive Request No 970079DOS021 Agency Case No 08-A-0327-A1 34 By letter dated March 10 1997 the Archive sought from the State Department disclosure of • 35 Copies of any State Department or other agency reports prepared in response to the following National Security Study Memoranda 1 NSSM 63 U S Policy on Current Sino-Soviet Differences 3 July 1969 2 NSSM 69 U S Strategy for Asia July 14 1969 3 NSSM 106 China Policy November 17 1970 4 NSSM 124 Next Steps Toward the Peoples Republic of China April 19 1971 The State Department coordinated with DOD on this request and on April 9 2010 DOD informed the Archive that it was releasing several excised documents concerning the U S military presence in Taiwan during the early 1970s 36 On May 3 2010 the Archive filed an administrative appeal under FOIA seeking further review of the excised material so that it could be determined whether the document may be released The Archive requested that the reviewers of the appeal take into consideration previously declassified information and the passage of time since the document’s creation so that may release more information The Archive identified several instances in which the excised information was connected to already declassified documents 37 DOD received the Archive’s appeal on May 12 2010 7 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 8 of 55 38 On May 18 2010 DOD informed the Archive that it would be unable to complete the appeal within the statutory time requirement DOD requested a time extension to complete the administrative appeal citing an extremely heavy FOIA workload as justification 5 Documents Concerning Taiwan China and Nuclear Relations with India Archive Request No 960752DOD094 Agency Case No 96-A-1798-A1 39 By letter dated September 9 1996 the Archive sought disclosure of • 40 Copies of documents on the attached list from accession 70A5127 Record Group 330 ISA Records for 1965 TS Files By letter dated May 17 2010 DOD informed the Archive that it had released several excised documents concerning Taiwan China and nuclear relations with India as responsive to Plaintiff’s FOIA request Two documents were withheld in their entirety 41 On June 3 2010 the Archive filed an administrative appeal under FOIA requesting a fresh review of the withheld information so that DOD could determine whether more information may be released The Archive explained that some of the withheld information was already available in the public domain 42 On June 18 2010 DOD requested a time extension to complete the administrative appeal citing an extremely heavy FOIA workload as justification 6 Secretary of Defense Records from 1967 Archive Request No 960870DOD113 Agency Case No 97-A-0053-A1 43 By letter dated December 12 1996 the Archive sought disclosure of • 44 Copies of documents from Accession 72A2468 Official Records of the Secretary of Defense for 1967 as listed on the enclosure By letter dated August 13 2010 DOD informed the Archive that it was withholding two documents in their entirety because they concern intelligence community activities relating to China 8 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 9 of 55 45 On August 25 2010 the Archive filed an administrative appeal under FOIA requesting further review of the withheld items so that DOD could determine whether they can be released at least in part The Archive emphasized previous declassification and publication of relevant documents on intelligence operations against China 46 On September 8 2010 DOD received and acknowledged the appeal DOD requested a time extension to complete the appeal citing an extremely heavy FOIA workload as justification 7 State Department Records on NATO NARA Archive Request No 950645NAR011 Agency Case No 04-A-2400-A1 47 By letter dated April 26 1995 the Archive sought from NARA disclosure of • Copies of documents withheld from Department of State Central Records 1960-1963 record group 59 as listed below A File 740 5 boxes 1646-1647 NND 949520 1 Letter Nitze to Rusk 12 20 61 2 Kohler to Secretary 1 24 62 3 Stoessel to Fessenden 1 30 62 4 Memcon 2 6 62 5 Report 2 26 62 6 Polto 1180 3 9 62 7 Memo Kohler to Secretary 4 16 62 8 Letter Stoessel to Fessenden 4 21 62 9 Summary 4 28 62 10 Telegram 221830Z 5 22 62 B File 700 5611 NND 94950 all withheld items • 48 I also request declassification review and or expedited processing if already reviewed of State Department decimal file 397 5611GE 1960-1963 Through a letter dated August 24 2010 NARA informed the Archive that DOD had released several excised documents many of which were at least 50 years old at the time as responsive to the Archive’s FOIA request 9 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 10 of 55 49 On September 27 2010 the Archive filed an administrative appeal with DOD under FOIA seeking further review of the excised material so that DOD could determine whether they can be released in their entirety The Archive also requested that the reviewers of the appeal take into consideration previously declassified information that is directly relevant to the contents of the exempted materials 50 On October 7 2010 DOD acknowledged receipt of the appeal 51 Through a letter dated October 13 2010 DOD requested a time extension to complete the appeal citing an extremely heavy FOIA workload as justification 8 Draft Presidential Memorandums 1960s Archive Request No 960001DOD001 Agency Case No 96-A-0310-A1 52 By letter dated February 12 1996 the Archive sought disclosure of • 53 Copies of documents from Accession 330-91-002 ASD P E Policy Files as listed on the enclosure On May 13 2003 the Archive amended the request toeliminate parts one two and five 54 Through a letter dated October 12 2010 DOD informed the Archive that it had excised several documents many of which were at least 50 years old at the time A total of 12 responsive documents 592 pages were located but only eight documents 257 pages were produced The four remaining documents 355 pages were sent to the Department of the Army Department of the Navy and the Department of the Air Force for review Deleted information in the responsive documents were allegedly exempt from release because the information was classified in accordance with Executive Order 13526 specifically Section s 1 4 a d g and h The information denied was also allegedly properly exempted under Section s 3 3 b 5 b 6 b 8 and b 9 10 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 11 of 55 55 On October 27 2010 the Archive filed an administrative appeal under FOIA seeking further review of the excised material so that DOD could determine whether they can be released in their entirety The Archive explained that despite the language of DOD’s decision that declassification of the excised material would cause “serious harm” to U S foreign relations and to “ongoing diplomatic activities” and would reveal operational or tactical elements of prior war plans that are contained in … active plans ” the excised information had already been in the declassified public domain for years 56 Through a letter dated November 10 2010 DOD acknowledged the Archive’s appeal and requested a time extension citing an extremely heavy FOIA workload as justification 9 Weapons Systems Evaluation Group WSEG Reports Archive Request No 960027DOD008 Agency Case No 96-A-0423-A1 57 By letter dated February 26 1996 the Archive sought disclosure of • Copies of documents from Defense Department accession 330-810439 USDRE records on WSEG reports as listed on the enclosure 58 On November 9 2005 the Archive narrowed the scope of its request 59 Through a letter dated October 23 2010 DOD released excised variants of several Weapons Systems Evaluation Group WSEG reports and withheld one item in its entirety 60 On November 16 2010 the Archive filed an administrative appeal under FOIA seeking further review of the excised material so that DOD could determine whether they can be released in their entirety The Archive sough further review of the withheld information The Archive also encouraged reviewers of this appeal to consider previously declassified information that is relevant to the withheld material 11 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 12 of 55 10 Soviet ABM Systems and Weapons Effects Archive Request No 950867DOD112 Agency Case No 95-A-1510-A1 61 By letter dated July 6 1995 the Archive sought disclosure of • 62 Copies of contract studies held in accession 330-78-0097 Federal Records Center Suitland Maryland as indicated in the attached list Through a letter dated December 31 2010 DOD informed Plaintiff that a total of fifteen documents 1561 pages were located Five documents 434 were referred to another agency for review Nine of the documents 983 pages were denied in full DOD released one document 144 pages DOD also acknowledged in its responsive correspondence that its processing of the request was inadequate in light of the time elapsed since the request was submitted 63 On January 25 2011 the Archive filed an administrative appeal under FOIA seeking further review of the withheld material so that DOD could determine whether they can be released in their entirety The Archive sough further review of the withheld information requesting that reviewers of this appeal take into consideration declassified information that that may be relevant to the contents of the exempted comments 11 Top Secret Secretary of Defense Records 1974 Archive Request No 951171DOD153 Agency Case No 95-A-2263-A1 64 By letter dated October 18 1995 the Archive sought disclosure of • 65 Any documents from the following files of accession 330-78-0010 Top Secret Secretary of Defense records for 1974 that relate in whole or in apart to U S or Soviet nuclear strategy arms control talks with the Soviet weapon development of strategic nuclear weapons and weapons delivery systems whether U S or Soviet On February 6 1996 the Archive submitted a supplemental letter to the original FOIA requests To expedite search and retrieval of relevant materials to the requests the Archive specified in detail the type of documents it was seeking 12 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 13 of 55 66 Through a letter dated December 30 2010 DOD informed Plaintiff that several documents had been sent to other agencies for review Three documents 7 pages were denied in full The remaining documents released by DOD were heavily excised DOD determined that the excised information as well as the documents denied in their entirety were exempt from release because the information was allegedly properly classified in accordance with Executive Order 13526 Specifically Section 1 4 a c d e and h Furthermore the information denied was also alleged to be exempt from automatic declassification in accordance with Section 3 3 b 2 and 3 3 b 4 - 6 67 On January 31 2011 the Archive filed an administrative appeal under FOIA seeking further review of the withheld and excised material so that DOD could determine whether they more information could be released The Archive explained that it should be possible to declassify some information from documents over thirty-five years old without harm to national security Moreover the availability of previously declassified information some of which is directly relevant to the excised portions confirms the possibility of further declassification 68 Through a letter dated February 7 2011 DOD acknowledged the appeal and requested a time extension citing an extremely heavy FOIA workload as justification 12 Defense Research and Engineering Records Archive Request No 950945DOD128 Agency Case No 95-A-1662-A1 69 By letter dated July 28 1995 the Archive sought disclosure of • 70 Copies of documents on the attached list from accessions 330-81-219 and 33081-0501 Defense Research and Engineering Records held at the Federal Records Center Suitland On November 9 2005 the Archive submitted a supplemental letter to the original FOIA requests narrowing their scope to expedite search and retrieval of relevant materials 13 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 14 of 55 71 Through a letter dated February 8 2011 DOD informed the Archive that a total of 23 documents 541 pages were located Five documents 132 pages had been denied in full Approximately twenty-five documents 409 pages were provided as responsive to the Archive’s request DOD determined that the withheld content was exempt from release because the information was allegedly properly classified in accordance with Executive Order 13526 Specifically Section 1 4 a c g and h Also the information denied was also alleged to be exempt from automatic declassification in accordance with Section 3 3 b 1 - 2 and 3 3 b 4 72 On March 3 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 13 Air Force Directorate of Operations Records from 1968 Archive Request No 20040951A1R046 Agency Case No 07-A-0402-A1 73 By letter dated August 20 2004 the Archive refiled a FOIA request that was originally filed on August 12 1994 to the Department of the Air Force The request sought disclosure of • Copies of the documents cited below from Air Force Directorate of Operations accession 72A-5971 held at Federal Records Center Suitland Maryland A Box 3 file RL 68 10 Atomic Weapons 1 Jan 68 1 Letter from XPDPA 5 8 68 nuclear weapons and Deterrence of War with enclosures B Box 3 file RL 68 13 Budget 1 Jan 68 – 15 Aug 68 1 Memo 6 15 68 from SAFOS signed Brown Strategic Forces and Effectiveness Tables with Detailed Recommendations 2 Letter 8 8 68 might be 8 6 to XPFSA from XDOC Review of Draft Presidential Memorandum on Strategic Offensive and Defensive Forces with AFXDO Comments 14 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 15 of 55 74 C Box 3 file RL 68 13 Budget 16 Aug 1968 - 1 Memo 8 26 68 to SOD from SAFOS signed Brown Draft Presidential Memo on Strategic Offensive and Defensive Forces with attachments D Box 4 file RL 68 17 SAC 1 Jan 68 1 Letter 4 27 68 to SAC from C S USAF with letter dated 4 8 68 2 SAC Inspection Report 3-18 September 1968 E Box 4 file RL 68 22 Conferences 1 Jan 68 1 Memo for Record 4 11 68 2 XDDFCC letter 10 22 68 with Minutes of the 1968 Annual Worldwide Command War Planning Conference F Box 4 file RL 68 26 Special File 1 Jan 68 1 Memo by Deputy Assistant Sec Def Leadtime for U S Response to Soviet Actions 1968 2 Talking Points on SAFUS Memo to Halperin 9 19 68 3 Letter 7 26 68 to OSD ISA from Sec AF with enclosure 4 Memo 7 28 68 to Halperin from Undersecretary AF Hoopes with Attachment 5 Memo to Hoopes from Kent 7 22 68 6 Memo to Halperin from Hoopes 7 15 68 G Box 6 file RL 68 38-9 Russia 1 Letter from XDOC re Report by J-5 2 6 68 H Box 7 file RL 68 57-2 Strategic Forces Planning 1 Letter to SAC from AFCCS 2 12 68 Strategic Concepts and Operations” Through a letter dated March 25 2011 NARA which by that time had taken possession of the records at issue informed the Archive that DOD had approved the release of several heavily excised documents from Air Force Directorate of Operations records for 1968 75 On April 4 2011 the Archive filed an administrative appeal to DOD under FOIA seeking further review of the heavily excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 15 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 16 of 55 14 SALT II Negotiations Archive Request No 951055DOD145 Agency Case No 95-A-2063-A1 76 By letter dated September 19 1995 the Archive sought disclosure of • Copies of documents from accession 330-78-002 top secret SecDef records for 1973 as indicated on enclosed list 77 On February 6 1996 the Archive narrowed the scope of its request 78 Through a letter dated March 11 2011 DOD released heavily excised copies of several documents on SALT II negotiations during 1973 and exempted one other document in its entirety 79 On April 11 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 80 DOD acknowledged receipt of Plaintiff’s appeal on April 18 2011 15 State Department Records from 1950s on Overseas Nuclear Deployments Archive Request No 950426NAR007 Agency Case No 04-A-2183-A1 81 By letter dated April 14 1995 the Archive sought from NARA disclosure of • Copies of the following documents from Department of State decimal files 1960-1963 A 740 5611 boxes 1648-1650 NND 949520 1 White to Merchant 1 9 60 2 Dillon to Gates 1 12 60 3 White to Merchant 1 16 60 4 Memcon 2 1 60 5 British Embassy to 740 5611 2-160 6 Kohler to Merchant 3 1 60 7 Memo Kohler to Secretary 3 10 60 8 Distribution Sheet State 3 15 60 9 Letter Wolf to Fessenden 3 17 60 16 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 17 of 55 10 Memo Kohler to Merchant 3 17 60 11 Two memcons 3 18 60 12 Memo Kohler to Undersecretary 3 26 60 13 Memcon 4 9 60 14 Memo Calhoun to Goodpaster 4 12 60 15 Memo Kohler to Merchant 4 25 60 16 Report Rowe 4 27 60 17 Polto 2440 6 10 60 18 Memo Kohler to Undersec 6 11 60 19 Memo Kohler to Acting Sec 6 13 60 20 Memo Kohler to Secretary 6 18 60 21 Letter Smith to Kohler 6 22 60 22 Memcon 7 22 60 23 Memcon 9 13 60 24 Memo Herter to Pres 9 14 60 25 Letter Dillon to Irwin 10 3 60 26 Memcon 10 4 60 27 Paris tels 1510 1511 10 15 60 28 Report 11 4 60 29 Memcon 11 10 60 30 Memo Farley 3 14 61 31 State tels 5245 5246 5 9 61 32 Statement 3 29 61 33 Rusk to McNamara 2 9 62 B Box 1650 file 740 5612 1 Memcon 11 4 60 2 Memcon 2 21 6 C All withheld material in file 741 5611 box 1661 NND949520 82 Through a letter dated March 30 2011 NARA informed the Archive that DOD declassified two documents 9 pages and released nine documents 39 pages with portions denied under section b 1 and b 3 of the Freedom of Information Act 5 U S C 552 83 On April 18 2011 the Archive filed an administrative appeal with DOD requesting further review of the withheld material so that it could be determined whether the alleged b 3 exemption was truly applicable Additionally the Archive requested that reviewers of the appeal take into consideration previously declassified and public record information that is directly relevant to the excised portions 17 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 18 of 55 84 On April 29 2011 DOD acknowledged the Archive’s appeal 16 Secretary of Defense Records from 1971 Archive Request No 950961DOD136 Agency Case No 95-A-1874-A1 85 By letter dated August 23 1995 the Archive sought disclosure of • 86 Copies of documents listed on attachment from accession 330-76207 records of the Secretary of Defense for 1971 held at Federal Records Center Suitland On March 23 2008 the Archive submitted a supplemental letter narrowing the scope of its initial request to expedite search and retrieval of relevant materials 87 Through a letter dated March 28 2011 DOD informed the Archive that it had located a total of seventy-seven responsive documents 1653 pages fourteen for it was denying release in full According to DOD four documents were duplicative in relation to a prior request DOD released forty-seven documents as responsive to the Archive’s request 88 On April 26 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 89 On May 5 2011 DOD acknowledged the Archive’s appeal and requested a time extension citing an overload of FOIA request as the reason 17 Deployment of MX Missiles Archive Request No 980419DOD067 Agency Case No 11-A-0082-A1 90 By letter dated September 29 1998 the Archive sought disclosure of • Any documents relating in whole or in part to the deployment of MX missiles design decisions for Trident II D5 missiles or NATO decisions to deploy intermediate medium range ballistic missiles that may be found in the 471 94 file series in the following Department of Defense accessions 18 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 19 of 55 91 Through a letter dated September 20 2010 DOD informed the Archive that it had located a total of forty-one documents 450 pages Several documents were sent to various departments and agencies for review Release of eight documents 136 pages was denied in full DOD released only twenty-five documents 76 pages as responsive to the Archive’s request 92 On May 17 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 93 On May 17 2011 DOD acknowledged the appeal 18 Records of Program Analysis and Evaluation PA E office Archive Request No 960003DOD003 Agency Case No 96-A-0256-A1 94 By letter dated February 5 1996 the Archive sought disclosure of • 95 Copies of documents from Accession 330-91-105 OASD PA E Policy Files as listed on the enclosure On March 19 2009 the Archive submitted a supplemental letter narrowing the scope of its initial request to expedite search and retrieval of relevant materials 96 Through a letter dated April 8 2011 DOD informed the Archive that it had located a total of eleven documents 1226 pages Of the eleven documents seven 960 pages were deemed non-responsive after the amendment was submitted One document 63 pages was denied in full Two documents 145 pages were referred to the Department of the Navy for review One document 58 pages was released 97 On June 1 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider 19 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 20 of 55 previously declassified material which is directly relevant to the information withheld in this case 98 On June 21 2011 DOD acknowledged the appeal and requested a time extension due to a work overload 19 ISA Policy Documents from 1970s Archive Request No 960118DOD017 Agency No 11-A-0096-A1 99 By letter dated April 8 1996 the Archive sought disclosure of • 100 Copies of documents from accession 330-81-763 ASD ISA Policy File 1976-1981 as listed on enclosure On March 19 2009 the Archive submitted a supplemental letter narrowing the scope of its initial request to expedite search and retrieval of relevant materials 101 Through a letter dated April 8 2011 DOD informed the Archive that it had located a total of eleven documents 1226 pages Of the eleven documents seven 960 pages were deemed non-responsive to the request as amended One document 63 pages was denied in full Two documents 145 pages were referred to the Department of the Navy for review One document 58 pages was released 102 On June 1 2011 the Archive filed an administrative appeal under FOIA seeking further review of the exempted and excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 103 On June 21 2011 DOD acknowledged the appeal and requested a time extension due to a work overload 20 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 21 of 55 20 Records of the Secretary of Defense 1970 Archive Request No 950960DOD135 Agency Case No 95-A-1819-A1 104 By letter dated August 18 1995 the Archive sought disclosure of • 105 Copies of documents listed on attachment from accession 330-76076 records of the Secretary of Defense for 1970 held at Federal Records Center Suitland By later dated October 17 1996 DOD informed the Archive that two documents 4 pages were transferred to other agencies for review 106 Through a letter dated April 8 2011 DOD informed the Archive that it had located a total of twenty-nine responsive documents 274 pages Two documents 4 pages were transferred to other agencies for review One document was determined to be duplicative The remaining twenty-six document 219 pages were released to the Archive 107 On June 1 2011 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 108 On June 16 2011 DOD acknowledged the appeal and requested a time extension due to a work overload 21 Records of the Secretary of Defense 1975 Archive Request No 951172DOD154 Agency Case No 95-A-2303-A1 109 By letter dated October 25 1995 the Archive sought disclosure of • 110 Copies of documents from accession 330-78-0059 TS SecDef records for 1975 held at the Federal Records Center Suitland as listed on the attachment Through a letter dated May 23 2011 DOD informed the Archive that it was unable to locate all records requested DOD was able to recover forty-six documents responsive to the request 499 pages Twenty-two documents 350 pages were denied in full Five 21 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 22 of 55 documents 48 pages were referred to another agency for review Of the 46 documents located only 17 documents 92 pages were released to the Archive 111 On June 10 2011 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 112 On June 16 2011 DOD acknowledged the appeal and requested a time extension due to a work overload 22 Decimal Files Regarding the UK Archive Request No 940770NAR047 Agency Case No 99-A-2203-A1 113 By letter dated September 3 1994 the Archive sought from NARA disclosure of • Copies of the following documents from Department of State decimal files 1960-1963 A 740 5611 boxes 1648-1650 NND 949520 1 White to Merchant 1 9 60 2 Dillon to Gates 1 12 60 3 White to Merchant 1 16 60 4 Memcon 2 1 60 5 British Embassy to 740 5611 2-160 6 Kohler to Merchant 3 1 60 7 Memo Kohler to Secretary 3 10 60 8 Distribution Sheet State 3 15 60 9 Letter Wolf to Fessenden 3 17 60 10 Memo Kohler to Merchant 3 17 60 11 Two memcons 3 18 60 12 Memo Kohler to Undersecretary 3 26 60 13 Memcon 4 9 60 14 Memo Calhoun to Goodpaster 4 12 60 15 Memo Kohler to Merchant 4 25 60 16 Report Rowe 4 27 60 17 Polto 2440 6 10 60 18 Memo Kohler to Undersec 6 11 60 19 Memo Kohler to Acting Sec 6 13 60 20 Memo Kohler to Secretary 6 18 60 22 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 23 of 55 21 Letter Smith to Kohler 6 22 60 22 Memcon 7 22 60 23 Memcon 9 13 60 24 Memo Herter to Pres 9 14 60 25 Letter Dillon to Irwin 10 3 60 26 Memcon 10 4 60 27 Paris tels 1510 1511 10 15 60 28 Report 11 4 60 29 Memcon 11 10 60 30 Memo Farley 3 14 61 31 State tels 5245 5246 5 9 61 32 Statement 3 29 61 33 Rusk to McNamara 2 9 62 B Box 1650 file 740 5612 1 Memcon 11 4 60 2 Memcon 2 21 61 C All withheld material in file 741 5611 box 1661 NND949520 114 As a result of the Archive’s request several documents were assigned to DOD for review DOD denied four documents in their entirety and heavily excised several others 115 On July 5 2011 the Archive filed an administrative appeal with DOD under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 23 Records of the Secretary of Defense 1975 Archive Request No 980426DOD069 Agency Case No 98-A-1890-A1 116 By letter dated October 25 1995 the Archive sought disclosure of • 117 Copies of documents from accession 330-78-0059 TS SecDef records for 1975 held at the Federal Records Center Suitland as listed on the attachment Through a letter dated May 27 2011 DOD informed the Archive that fourteen responsive documents 630 pages were located Three documents 185 pages were denied in 23 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 24 of 55 full Approximately eleven redacted documents 445 pages were provided as responsive to the Archive’s request DOD identified 5 U S C 552 b 1 b 5 b 6 and other exemptions as the basis for the redactions and denials 118 On July 14 2011 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items and exempted documents so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 119 On July 18 2011 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 24 Records of Former Arms Control and Disarmament Agency Archive Request No 20040110DOS045 Case No 05-A-0467-A1 120 By letter dated February 4 2004 the Archive sought from the State Department disclosure of • documents from accession 383-99-0162 records of the former Arms Control and Disarmament Agency held at the Washington National Records Center Suitland MD 121 The State Department referred two documents and the Archive’s request to DOD 122 Through a letter dated August 24 2011 DOD released two excised documents as responsive to the Archive’s FOIA request to the Department of State 123 On June 10 2011 the Archive filed an administrative appeal under FOIA to DOD seeking further review of the significantly excised portions of the two released documents so that it may be determined whether additional information can be declassified 25 Arms Control and National Security Archive Request No 980376DOD059 Agency Case No 98-A-1662-A1 124 By letter dated June 22 1998 the Archive sought disclosure of 24 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 25 of 55 • 125 Copies of documents from Department of Defense accession 33096-0038 held at the Washington National Records Center as described in the attached list Through a letter dated September 1 2011 DOD released heavily excised versions of forty documents concerning arms control and national security issues during the late 1970s and early 1980s An additional eight documents were withheld in their entirety 126 On October 19 2011 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified material which is directly relevant to the information withheld in this case 127 On October 21 2011 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 26 The JCS and National Policy Archive Request No 20011424DOD103 Case No 02-A-0476-A1 128 By letter dated November 30 2001 the Archive sought disclosure of • Excerpts from the following histories of the JCS and National Policy 1 any chapters from the history for 1965-1968 concerning U S policy toward NATO 2 any chapters or material from the history for 1969-1972 concerning a U S policy toward NATO and b the JCS Readiness Test of October 1969 129 Through a letter dated February 29 2012 DOD informed the Archive that a total of three documents 117 pages were located DOD determined that the excised information in the responsive documents as well as 56 other full documents 240 pages was exempt from 25 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 26 of 55 release under Executive Order 13526 specifically Section 1 4 a d and Section 3 3 b 5 6 and 9 130 On March 15 2012 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released without harm to national security or violating statutory requirements 27 Joint Strategic Target Planning Staff 1973-1976 Archive Request No 20030284DOD020 Case No 03-A-1236-A1 131 132 By letter dated April 24 2003 the Archive sought disclosure of • Histories of the Joint Strategic Target Planning Staff for the period between July 1973 and June 1976 • Any JSTPTS histories specifically on the preparation of SIOP-5 Through a letter dated September 1 2011 DOD released heavily excised versions of three documents 323 pages as responsive to the Archive’s request DOD determined that the deleted information was exempt from because the information was properly classified in accordance with Executive Order 13526 Section 1 4 a c and d 133 On July 2 2012 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified information concerning the Single Integrated Operational Plan and strategic nuclear targeting policy during the 1970s which is directly relevant to this appeal 134 On July 17 2012 DOD acknowledged the appeal and requested a time extension due to a work overload 26 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 27 of 55 28 Secretary of Defense Statement on Strategic Forces Archive Request No 20030228DOD013 Case No 03-A-1010-A1 135 By letter dated March 24 2003 the Archive sought disclosure of • Accession 330-80-0061 OSD statements box 1 SecDef Policy Statements on Strategic forces 1974-75 ibid 1973-74 136 Through a letter dated July 26 2012 DOD released several excised documents 137 On September 27 2012 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised materials so that DOD could determine whether additional information can be released The Archive explained that some of the excised documents were never classified initiallyand consisted of public statements made by Secretary of Defense James Schlesinger to Congress Additionally many of the “classified” documents had already been released to the public 138 On September 28 2012 DOD acknowledged the appeal and requested a time extension due to a work overload 29 Soviet Violations of SALT II Archive Request No 20040813DOD109 Agency Case No 04-A-2204-A1 139 By letter dated July 15 2004 the Archive sought disclosure of • 140 Any memoranda reports or briefing papers relating to NSC meetings held in late April and May of 1986 discussing about a possible Soviet violation of SALT II and a possible reinterpretation of the ABM treaty to enable deployment and experiment of the SDI program Through a letter dated September 18 2012 DOD informed the Archive that eight responsive documents 350 pages were located Release of three documents 11 pages was denied in full One document 14 pages was referred to another agency for review Only four documents 325 pages were released but were excessively excised 27 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 28 of 55 141 On November 8 2012 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further requested that reviewers consider previously declassified information and questioned whether the documents remain sensitive considering more than 25 years had passed following the events at issue in the requested documents 142 On November 14 2012 DOD acknowledged the appeal and requested a time extension due to a work overload 30 State Department Records on US-UK relations Archive Request No 940871NAR055 Agency Case No 98-A-1725-A2 143 By letter dated October 11 1994 the Archive sought from NARA disclosure of 144 • All material withheld from the following files in Record Group 59 Department of State Policy Planning Staff 1947-1953 box 17 NND 883076 1 Great Britain 1947-1953 2 Great Britain 1948-1950 2 files 3 Great Britain 1951 4 Great Britain 1952-1953 2 files • All material withheld from decimal file 711 56341 NND 907415 Boxes 2888-2890 1955-1959 decimal files • The following documents from decimal file 611 41 1950-1955 decimal files NND 852911 Box 2770 1 Partial folder 1952 all PFs in this request are from January 1952 file 2 Partial folder 1952 3 Memcon 1 18 52 4 Partial folder 1952 5 Minutes 3 6 53 6 Memo 3 10 53 Smith to SecState Through a letter dated October 1 2012 NARA informed the Archive that DOD had released a number of excised documents on Anglo-American nuclear relations found in the State Department records as responsive to the Archive’s request 28 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 29 of 55 145 On October 31 2012 the Archive filed an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive further explained that the documents at issue in the appeal were over a half-century old and questioned whether their declassification could cause any harm to national security as claimed by DOD 146 On November 19 2012 DOD acknowledged the appeal and requested a time extension due to a work overload 31 Theater Nuclear Forces Deployment Issues Archive Request No 20031020DOS113 Agency Case No 05-A-0738-A1 147 By letter dated November 24 2003 the Archive sought from the State Department disclosure of • ACDA accession 383-98-0162 docs from A Box 21 1 CIA Memo on Soviet Cruise Missile Program 1 75 2 CIA Report on Status of Soviet Strategic Forces 4 75 B Box 22 1 ACDA Memo on Mass Destruction Terrorism Study 9 75 2 ACDA Memo on Additional Background on Total Yield Deliverable by USSR 10 75 3 ACDA Memo on New Initiative Dealing with Nuclear Terrorism 1st Draft 2 76 4 CIA Report on Status of Soviet Strategic Offensive Forces as of 3 1 76 3 76 C Box 23 1 Paper on the Soviet Cruise Missile Program 3 76 2 ACDA Memo for Director on Visit to SAC Headquarters 6 76 D Box 24 1 ACDA Study on Minuteman Survivability Through 1986 1 76 2 DIA Report on Members View of Un-reinforced Attack 10 76 3 Department of State Memo on US SALT Position 3 77 4 White House Memo on SALT and Other Arms Control Issues Addressed in Moscow 4 77 29 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 30 of 55 5 OSD Memo for the SCC SALT Working Group on the Strategic Balance Under the US SALT Comprehensive Proposal of 3 25 77 6 CIA Memo on Soviet Views of the Strategic Implications of the US Moscow Proposals 5 77 7 Final Draft Paper on Cruise Missiles--US NATO Consultation 5 77 E Box 25 1 CIA report on Status of Soviet Strategic Forces as of 6 1 77 6 77 2 White House Memo for the Pres on Summary Report for Your Info 6 77 3 White House Memo on SCC Meeting 11 6 77 10 77 4 NSC Memo on Enhanced Radiation Warhead 11 77 5 DIA Intelligence Appraisal USSR An Update on Soviet Perspectives on Nuclear War 1 78 F Box 26 1 White House Memo on SCC Meeting on SALT 3 78 2 Report on Minuteman Survivability 4 78 3 U S and Soviet Positions on Major SALT Issues 5 78 4 Defense Dept Memo for the President Diminishing US Lead in Total Numbers of Strategic Warheads 7 78 5 NSC Memo on SCC Meeting - PR-38 8 22 78 8 78 6 DOS Memo to Secretary--SALT SCC Meeting 9 1 78 8 78 7 Review of US Launch-Under Attack Option--a CIA report Prepared for ACDA 10 78 G Box 27 1 CIA Report on Status of Soviet Strategic Offensive Forces As of 5 1 79 5 79 2 NSC Memo Memo re SCC Meeting - TFN - 7 5 79 7 79 3 Defense Dept Memo for the President on MX Basing 9 79 4 White House Memo on Summary of Conclusions SCC Meeting on PRM 38 LRTNF 9 78 5 Dept of State Memo on Discussion for the Failed Bilaterals Final Edit on TFN Issues 9 78 6 ACDA Memo for the Director on SCC Meeting LRTNF 7 5 79 7 79 7 ACDA Memo for the Director on SCC Meeting on TNF 3 23 79 3 79 8 Report of the High-Level Group on Broad Goals n d 9 Department of State Memo on US UK Strategic Cooperation 10 79 10 ACDA Memo on US UK Strategic Cooperation 10 79 11 Draft Report on LRTNF Systems Military Considerations 6 28 78 6 78 12 NSC Memo Attaching SCC Approved Instructions for D Aaron's Trip 7 79 13 NSC Memo re SCC Meeting on TNF 8 16 79 8 79 30 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 31 of 55 148 The State Department referred the Archive’s request and five documents 72 pages to DOD which received them on December 8 2004 149 Through a letter dated October 1 2012 DOD released twelve documents 72 pages as responsive to the Archive’s request 150 On December 10 2012 the Archive filed an administrative appeal under FOIA seeking further review of twelve heavily excised documents on the theater nuclear forces debates of 1978-1979 The Archive further requested that DOD consider previously declassified information 151 On December 10 2012 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 32 Documents on Strategic Air Command and NATO Nuclear Planning Group Archive Request No 940753NAR044 Agency Case No 01-A-2296-A1 152 By letter dated August 25 1994 the Archive sought from NARA disclosure of • Contents of the following folders held in the Earl Wheeler Papers Record Group 218 Joint Chiefs of Staff Box 80 1 file 323 3 CINCSAC Box 98 1 337 NPG Meeting Sept 67 2 337 NPG Meeting April 68 3 337 NPG Meeting Bonn Oct 68 Boxes 115 1 471 94 Missiles Rockets 3 folders 153 On September 13 1994 NARA acknowledged the Archive’s request and requested a time extension 31 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 32 of 55 154 Through a letter dated June 4 2013 NARA informed the Archive that DOD and the Department of Energy had released several excised documents as responsive to the Archive’s FOIA request 155 On July 12 2013 the Archive filed with NARA an administrative appeal under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive limited the appeal to document ID number 601131 the Joint Staff memorandum enclosing a memorandum by Commander in Chief Strategic Air Command General Thomas Power dated November 3 1964 with attachments 156 On August 16 2013 DOD received the Archive’s appeal 33 Records on Net Evaluation Subcommittee Archive Request No 20010008NLE001 Agency Case No 01-A-2264-A1 157 By letter dated January 23 2001 the Archive sought from the Dwight D Eisenhower Library disclosure of • 158 Copies of reports presented annually to the National Security Council by the Net Evaluation Subcommittee of the National Security Council for each year from 1957 to 1960 These documents should be in a collection of recently accession of intelligence files recently accessioned by the National Security Council to the presidential libraries Through a letter dated December 9 2013 the Dwight D Eisenhower Library informed the Archive that DOD had denied in its entirety the reports of the NSC Net Evaluation Subcommittee NESC from 1957 to 1960 sought in the Archive’s initial FOIA request 159 On December 17 2013 the Archive filed an administrative appeal under FOIA seeking further review of the of the documents denied by DOD The Archive explained that considering previous declassification decisions by the U S government agencies it should be possible for DOD to declassify significant and substantive portions of these reports 32 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 33 of 55 160 On December 31 2013 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 34 161 Top Secret Central Foreign Policy Files 1964-1966 Archive Request No 970302NAR058 Agency Case No 06-A-1726-A1 By letter dated May 8 1997 the Archive sought from NARA disclosure of • Copies of the following documents withdrawn from Record Group 59 Formerly Top Secret Central Foreign Policy Files 1964-1966 NND 959000 A Box 1 tabs 1 26-34 35 53 59 60 and 62 B Box 3 tabs 3-44 and 54 2-20 through 2-29 1-12 1-13 115 through 1-25 C Box 4 tabs 2-64 76 78 through 80 3-6 and 3-7 D Box 5 tabs 2-4 3-10 10A 11 12 14 15 16 and 18 E Box 6 tabs 1-84 86 through 97 2-6 through 16 18 1-102 through 108 111 F Box 9 tab 9B 1 G Box 10 tabs 4-9 3-180 through 184 4-8 H Box 11 tabs 4-27 28 29 32 and 53 I Box 14 tab 6-1 162 Through a letter dated December 13 2013 NARA informed the Archive that DOD had declassified in whole or in part several documents as responsive to its request 163 On January 8 2014 the Archive filed an administrative appeal under FOIA limited to a single released document tab 2-4 in box 5 which is a State Department memorandum dated November 16 1964 concerning a meeting between Secretary of Defense Robert McNamara and West German Defense Minister von Hassel The memorandum was excessively excessed such that it is virtually impossible to determine its exact subject matter 164 On June 17 2014 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 35 JCS Chairman Radford Files NARA Archive Request No 940025NAR009 Agency Case No 99-A-0403-A1 165 By letter dated January 12 1994 the Archive sought from NARA disclosure of 33 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 34 of 55 166 • Copies of the documents withdrawn from the following files in RG 218 Records of the Chairman Joint Chiefs of Staff A Arthur Radford Papers Box 50 1 381 Net Evaluation 2 ditto July-December 1955 3 ditto 1957 4 ditto 1956 5 ditto Jan-May 1955 6 ditto June 1955 • Decimal files 1958 CCS 471 6 8-15-45 Sections 108-115 and 125 1 Through a letter dated February 12 2014 NARA informed the Archive that DOD had released excised and complete version of numerous documents from record group 218 records of JCS Chairman Arthur Radford In addition one document was withheld in its entirety 167 On March 14 2014 the Archive filed an administrative appeal with NARA under FOIA regarding the various documents that were heavily excised or denied in their entirety on 552 U S C 552 b 1 grounds despite being over fifty-five years old The Archive questioned whether the information remains so sensitive that is release would in any way damage national defense or foreign relations andlimited its appeal to 552 b 1 and b 3 information in two of the excised documents and the single document denied in its entirety 168 On April 17 2014 the Archive submitted supplemental information to the March 14 2014 administrative appeal 169 On May 1 2014 DOD received the appeal 36 Documents on US UK Nuclear Relations Archive Request No 940871NAR055 Agency Case No 02-A-1474-A1 170 By letter dated October 11 1994 the Archive sought from NARA disclosure of • Copies of the following A All material withheld from the following files in Record Group 59 Department of State Policy Planning Staff 19471953 box 17 NND 883076 34 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 35 of 55 1 Great Britain 1947-1953 2 Great Britain 1948-1950 2 files 3 Great Britain 1951 4 Great Britain 1952-1953 2 files B All material withheld from decimal file 711 56341 NND 907415 Boxes 2888-2890 1955-1959 decimal files C The following documents from decimal file 611 41 19501955 decimal files NND 852911 Box 2770 1 Partial folder 1952 all PFs in this request are from January 1952 file 2 Partial folder 1952 3 Memcon 1 18 52 4 Partial folder 1952 5 Minutes 3 6 53 6 Memo 3 10 53 Smith to SecState 171 Through a letter dated April 2 2014 NARA informed the Archive that DOD had released several documents from Record Group 59 in excised form 172 On April 24 2014 the Archive filed an administrative appeal with NARA under FOIA requesting further review of the excised portions so that it could be determined whether more information can be declassified The Archive further explained that the availability of previously declassified information that is directly relevant to the excised portions should make it possible for DOD to agree to release the excised details 37 State Department Central Files—Early 1960s NARA Archive Request No 950645NAR011 Agency Case No 04-A-2219-A1 173 By letter dated April 26 1995 the Archive sought from NARA disclosure of • Copies of documents withheld from Department of State central records 1960-1963 record group 59 as listed below A file 740 5 boxes 1646-1647 NND 949520 1 Letter Nitze to Rusk 12 20 61 2 Kohler to Secretary 1 24 62 3 Stoessel to Fessenden 1 30 62 4 Memcon 2 6 62 5 Report 2 26 62 6 Polto 1180 3 9 62 7 Memo Kohler to Secretary 4 16 62 35 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 36 of 55 8 Letter Stoessel to Fessenden 4 21 62 9 Summary 4 28 62 10 Telegram 221830Z 5 22 62 174 • file 700 5611 NND 94950 all withheld items • “I also request declassification review and or expedited processing if already reviewed of State Department decimal file 397 5611GE 1960-1963 ” Through a letter dated May 9 2014 NARA informed the Archive that DOD had excised several documents from Record Group 59 175 On May 21 2014 the Archive filed an administrative appeal with NARA under FOIA seeking further review of the significantly excised items so that DOD could determine whether additional information can be released The Archive explained that the availability of previously declassified formerly highly sensitive information from this period on related topics suggested that the standards used by DOD for this review were overly restrictive and based on a misunderstanding of the requirements of national security policy 38 ACDA Documents on Strategic Issues Archive Request No 980376DOD059 Agency Case No 98-A-1662-A2 176 By letter dated June 22 1998 the Archive sought disclosure of • 177 Copies of documents from Department of Defense accession 33096-0038 held at the Washington National Records Center as described in the attached list In response DOD informed the Archive that the request was effectively overloading the system Via email on April 3 2009 the Archive narrowed its request to boxes 5 6 and 7 of the previously requested documents 178 Through a letter dated April 25 2014 the State Department’s Office of Information Programs and Services which was coordinating with DOD on the review and subsequent declassification of the requested documents responded to the Archive’s request for 36 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 37 of 55 documents retrieved from the request to DOD Many of the requested documents were heavily excised 179 On May 12 2014 the Archive filed an administrative appeal under FOIA with the Department of State seeking further review of the significantly excised items so that it could determine whether additional information can be released The Archive questioned why so much vital information needed to be withheld from any of the requested documents decades after they were created in what was a “very different” security environment 180 On July 23 2014 the State Department notified DOD that “before we OIPS take final action we ask you re-review the material you forwarded to us for this appeal by Dr Burr ” 181 DOD received the appeal on July 29 2014 39 Report on Warsaw Pact Threat to Central Europe Archive Request No 20020265DOD018 Agency Case No 02-A-1250-A1 182 By email dated May 1 2002 the Archive sought disclosure of • The following document from box 4 of Defense Department accession 330-86-70 Policy Files for Assistant to the Secretary for Atomic Energy 1961-1980 held at the Federal Records Center Suitland TS-77-84 Report on the Size and Timing of the Warsaw Pact Threat to Central Europe 183 Through a letter dated August 20 2014 DOD informed the Archive of the results of the search and release determination for the requested documents Included in the responsive documents were heavily excised versions of a lengthy report on the “The Size and Timing of the Warsaw Pact Threat to Central Europe ” 184 On September 15 2014 the Archive requested further declassification review of the withheld information The Archive point to four examples of lightly excised materials 37 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 38 of 55 declassified by the CIA that suggested DOD should likewise be able to release additional information 185 On September 16 2014 DOD acknowledged the Archive’s appeal and requested a time extension due to a work overload 40 Document on Ballistic Missile Defense 1983 Archive Request No 20040716DOD079 Agency Case No 04-A-1730-A1 186 By letter dated June 24 2004 the Archive sought disclosure of • 187 Any reports produced by the Future Security Strategy Study Group set up by the Department of Defense in compliance with the National Security Study Directive 6-83 issued on April 18 1983 Through a letter dated October 29 2014 DOD provided several documents 92 pages as responsive to the Archive’s request DOD informed the Archive that the withheld information in the responsive documents was exempt from release because it was properly classified in accordance Executive Order 13526 188 On November 18 2014 the Archive filed an administrative appeal requesting further review of the withheld information so that it could be determined whether more of it can be declassified Furthermore the Archive requested that the reviewers take into consideration a substantially declassified 1987 “Report to Congress on Strategic Defense System Architecture ” which includes substantive and relevant information The Archive further explained that the declassified public record nature of such information may authorize DOD to declassify more information without harming national security 189 On November 19 2014 DOD acknowledged receipt of the appeal and requested a time extension due to a work overload 38 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 39 of 55 41 Top Secret Records from ACDA Files 1970s Interagency Report on “Threat to US Interests in Asia” Archive Request No 20030853DOS075 Agency Case No 04-A-1257-A1 190 By letter dated August 21 2003 the Archive sought from the State Department disclosure of • material from ACDA accession 383-98-0162 Box 1 a Consequence of Development of nuclear weapons by Additional Countries Up to 1975 Joint Intelligence Committee May 1966 b Project Great Circle II Document Forwarding Of October 1966 Box 5 a Report on Chinese Communist High Command Decision making A Resume of Seminars Sponsored by the Assistant Secretary of Defense for Systems Analysis June 1970 b NSSM 69--U S Nuclear Policy in Asia June 1970 c The Role of the Sufficiency Criteria in Strategic Force Planning May 1970 Box 7 a NSSM-84 US Strategy and Forces for NATO Volumes I and II October 1970 Box 8 a NSSM-69 The Threat May 1971 Box 9 a Report on National Security Decision Memorandum-95 Tactical Theater Nuclear Forces June 1971 Box 10 a DPRC Meeting on NSSM-69 U S Strategy and Forces in Asia July 1971 b Strategic Program Strategic Flexible Response and Strategic Command and Control Papers August 1971 c Chinese Strategic Options-NSSM 69 September 1971 Box 11 a U S Strategy and Forces for Asia NSSM-69 October 1971 39 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 40 of 55 b DPRC Meeting NSSM-69 November 1971 c Disarming Strike Analysis--NSSM 69 November 1971 d Asia Nuclear Strategy Issue Paper NSSM 69 November 1971 Box 13 a NAC Strategic Balance Briefing Request March 1972 Box 14 a National Security Decision Memorandum-95 Follow on Study--Tactical nuclear weapons in NATO July 1971 b Memorandum to the President SALT Position Minuteman Vulnerability March 1971 Box 15 a JCS Memorandum on Guidance for Further Study of Strategic Objectives and Alternatives August 1972 Box 17 a ACDA Memorandum on Single Integrated Operational Plan SIOP Expansion Studies April 1973 b Bureau of Intelligence and Research INR Report on Soviet ICBM MIRV Developments September 1973 c ACDA Memorandum Tactical Nuclear Warfare Doctrine October 1973 Box 18 a ACDA Memorandum Memorandum for the Director Tactical Nuclear Warfare Doctrine b NSC Memorandum on Papers on Nuclear Policy February 1975 191 Through a letter dated October 29 2014 the State Department provided a final response to the Archive’s request and provided several documents as responsive However an interagency document from June 1970 regarding “The Threat to U S Interests in Asia ” was withheld in its entirety The State Department stated that it had transferred this case to DOD 192 On December 12 2014 the Archive filed an administrative appeal with DOD requesting further review of the withheld information so that it may be determined whether more of it can be declassified Furthermore the Archive argued that significant and substantive information can be declassified from the withheld document without harm to national security 40 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 41 of 55 42 1984-1986 Defense Records Archive Request No 20050497DOD038 Agency Case No 05-A-1534-A1 193 By letter dated May 4 2005 the Archive sought disclosure of • Any documents on strategic missile defense or U S nuclear strategy including targeting policy that may be found in the following files in Department of Defense accessions held at the Washington National Records Center I Accession 300-87-0023 1984 Official Records Top Secret of The Secretary and Deputy Secretary of Defense and the Executive Assistant to the Secretary and Deputy Secretary of Defense box 1 a 334 NSPG May-Sep b 334 NSPG Jan-Mar c 337 State d 337 WH II Accession 330-88-0058 1985 Official Records Top Secret of The Secretary and Deputy Secretary of Defense and the Executive Assistant to the Secretary and Deputy Secretary of Defense box 1 a 334 NSC b 334 NSPG c 337 State d 373 24 III Accession 300-88-0040 1986 Official Records Top Secret of The Secretary and Deputy Secretary of Defense and the Executive Assistant to the Secretary and Deputy Secretary of Defense 1 box 1 a 333 Weinberger b 334 CPPG c 334 NSC d 334 NSPG e 334 SIG f 337 WH 2 box 2 USSR 337 194 Through a letter dated September 29 2016 DOD released an excised version of a memorandum from Secretary of Defense Weinberger to the National Security Adviser concerning “Comments on Your Post-Reykjavik Follow-Up ” 41 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 42 of 55 195 On November 2 2016 the Archive filed an administrative appeal requesting further review of the excised portions of the memorandum so that it could be determined whether more of it can be declassified Furthermore the Archive noted that the White House paper that Weinberger was commenting on “Post-Reykjavik Follow-Up” has been declassified in its entirety The Archive explained that taking into consideration that declassification it should be possible to declassify Weinberger’s comments in their entirety without harm to foreign relations or national security 196 On November 22 2016 DOD acknowledged receipt of the appeal and requested a time extension due to a work overload 43 Defense Department Records on China from Early 60s held at NARA Archive Request No 970871DOD047 Agency Case No 08-A-0236-A1 197 By letter dated September 16 1997 the Archive sought from NARA disclosure of • Copies of any documents concerning Chinese PRC nuclear weapons policies or programs including prospective or past nuclear weapons tests delivery systems and air defense systems and or U S policy toward the Chinese nuclear program in the following files from Record Group 330 Department of Defense Records held at the Federal Records Center at Suitland Md 1 Accession 67-A-4564 Records of the Assistant Secretary of Defense International Security Affairs Country Files for 1963 Box 3 Files China Communist six folders 2 Accession 68-A-306 Records of the Assistant Secretary of Defense International Security Affairs for 1964 Box 28 Files China Communist two folders 198 Through a letter dated June 3 2016 DOD through NARA released several documents from 1963 However eighteen documents 580 pages were heavily excised or exempted 42 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 43 of 55 199 On August 1 2016 the Archive filed an administrative appeal limited to the eighteen excised or exempted documents and requested that they be reviewed so that it could be determined whether additional information from them can be declassified Formerly highly sensitive information on the subjects contained in the excised and exempted documents produced during 1963 had been declassified over the years The Archive argued that due to the declassification reviewers of the appeal may be enabled to declassify similar information without harm to national security or foreign relations 44 State Department Files on NSC NARA Archive Request No 99-A-0695A2 Agency Case No NGC16- 083A 200 By letter dated May 12 1997 the Archive sought from NARA disclosure of • Copies of the following withheld items from Record Group 59 Department of State Records A General Files on NSC Matters 1969-1972 NND 979503 1 Box 2 tabs 2 3 and 4 2 Box 4 tabs 2 4 and 5 3 Box 7 tabs 1 2 different tabs 1 2 7 and 8 4 Box 8 tabs 1 and 2 5 Box 11 tabs 1 2 and 3 if these documents have to do with Netherlands and nuclear subs I withdraw this part of the request 6 Box 12 tabs 1 2 and 3 7 Box 13 tab 1 8 Box 14 tabs 1 and 5 in file NSC-U SEC Com Misc Memos 9 Box 14 tabs 1 and 2 in file NSC U SM Misc Memos 1972 10 Box 15 tab 1 11 Box 17 tabs 2 and 4 B Executive Secretariat Conference Files 1966-1972 NND 979506 Box 76 files on Secretary's Trip to East Asia July-August 1969 box 76 tab 4 201 Through a letter dated June 13 2016 NARA released several documents responsive to the Archive’s request that had been excised by DOD The release included 43 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 44 of 55 document ID 479721 an excised briefing paper concerning “SALT – NSC Meeting 2 00 p m June 29 ” 202 On August 10 2016 the Archive filed an administrative appeal limited to document ID 47921 seeking further declassification review of the massively excised document The Archive noted that considering previous declassification releases concerning the SALT I process inside the Nixon administration during June 1971 it should be possible to release more information from the single document at issue without harm to national security 45 Records on Nixon-Era National Security Study Memoranda AF Litigation Archive Request No 20040952AIR047 Agency Case No 06-A-1954-A1 203 In letter dated August 20 2004 the Archive sought from the Air Force disclosure of • Copies of documents from two accessions of Air Force records Record Group 341 held at the Federal Records Center Suitland MD I Accession 341-75-855 Box 1 A File RL 69 20 Atomic Weapons 1 Jan 69 1 Letter from AFXDOC 6 26 69 Review of an Array of Nuclear Warfare Scenarios 2 Letter from AFXDOC 2 7 69 Review of Scenarios for NUWARs B File RL 49-3 ICBM 1 Jan 69 1 Letter from AFXPFSO 7 23 69 Hard Target Kill HTK Requirements 2 Letter from AFXDOC 7 17 69 Hard Target Kill Requirements Box 2 A File 69 73-1 RAND 1 Jan 69 1 Letter from AFXDP 12 12 69 RAND Participation in NU-OPTS III II Accession 341-75-852 Box 1 A Folder #2 1 Brief 10 11 69 JCS Sponsored Exercise High Heels 69 44 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 45 of 55 2 Brief 12 0 69 Briefing for the Director DSTP on War Game SIOP 4F Vs RISOP 69 B Folder #3 1 Brief 11 20 69 NSSM-64 U S Strategic Capabilities III Accession 341-75-556 Records of USAF SAB Box 3 A Folder Nuclear Panel Intelligence Meeting 3-4 March 1970 B Folder Nuclear Panel Review of Kill Criteria for nuclear weapons March 1970 IV Accession 341-75-857 Box 1 A Folder RG 70 70-71 Correspondence Speeches 1 Letter from XO 12 10 70 Briefing on US SSBNs with attachment Box 2 A Folder RL 70 71 Studies 1 Jan 70 1 Sino-Soviet Interaction A Qualitative Assessment Project Triad 6 70 2 Sino-Soviet Conflict Its Implications for U S Strategic Planning in the 1970s Project Triad Report 8 70” 204 On November 28 2005 the Air Force informed the Archive that it had transferred the request to NARA 205 Through a letter dated August 11 2016 DOD through NARA released several excised documents as responsive to the Archive’s request 206 On September 26 2016 the Archive filed an administrative appeal with NARA seeking further declassification review of the excised information The Archive questioned whether so much information needed to be withheld considering the documents at issue were at least 50 years old 207 On December 9 2016 DOD acknowledged receipt of the appeal and requested a time extension due to a work overload 45 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 46 of 55 46 JCS Documents on Targeting Issues from 1961 NARA Appeal No 12-A-0124-A1 Archive Case No NARA # NGC16- 091A 208 By letter dated October 3 1995 the Archive sought from NARA disclosure of of • Copies of documents from the following files in Record Group 218 Records of the JCS 1961 decimal series 1 3105 8 March 1961 1 Sec 1 any withheld material 2 3105 8 March 1961 1 Sec 2 a DSTP memo to JCS re JSTPS studies 6 13 61 with enclosures b DASA memo to S JCS 6 26 61 Damage Criteria Study c Guidance to JCS National Strategic Attack Policy Damage Criteria with recommendations 7 14 61 3 3105 8 Mar 61 3 Sec 2 any withheld material 4 3105 8 Mar 61 3 Sec 3 any withheld material 5 3105 8 Mar 61 4 a JSTPS to JCS 5 3 61 with Study of Target Value Criteria b Director JSTPS to JCS with Minutes of Target Weighting Conference 6 15 61 c Report by J-2 11 15 61 d Decision on JCS 2056 257 11 23 61 e Memo from JCS to Dir STP 11 27 61 6 3105 Joint Planning 13 September 1961 briefing to President Kennedy on SIOP-62 209 Through a letter dated August 23 2016 DOD through NARA released several documents in excised form 210 On September 13 2016 the Archive filed an administrative appeal with NARA requesting further declassification review of the excised portions of the documents provided as responsive Plaintiff limited the appeal to five documents 47 State Department Records at NARA John Irwin Files Archive Request No 980476NAR012 Agency Case No NGC16- 079A 211 By letter dated September 29 1998 the Archive sought from NARA disclosure of 46 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 47 of 55 • Copies of the following documents in Department of State Records RG 59 Records of Under Secretary of State John Irwin 1969-73 NND 981511 1 box 1 tabs 1 and 2 2 box 2 tabs 4 10 11 and 12 3 box 3 tabs 15 and 17 4 box 4 tabs 19 20 29 through 32 5 box 5 tabs 34 through 40 212 Through a letter dated June 21 2016 DOD through NARA released several excised documents as responsive to the Archive’s request 213 On July 29 2016 the Archive filed an administrative appeal with NARA seeking further declassification review of the denied information including nineteen documents withheld in part and two documents withheld in full The Archive suggested that reviewers of this appeal consider previously declassified information which it described in detail in the appeal 214 On August 1 2016 NARA informed DOD of the Archive’s appeal 48 Department of State Records from 1960s at NARA Archive Request No 980210NAR004 Agency Case No 12-A-0126-A1 215 By letter dated April 22 1998 the Archive sought from NARA disclosure of • Copies of the following documents from Record Group 59 Department of State records I Records of the Deputy Special Assistant for Politico-Military Affairs Subject Files 1961-1968 NND 98524 box 7 tabs 6 and 7 II Records of the Deputy Assistant Secretary for Politico-Military Affairs Subject Files 1961-1968 NND 979566 box 23 a Defense Affairs NATO SPECOM tabs 23 1 through 23 4 b Defense Affairs NESC Report Def 18-2 tabs 23 14 15 and 18 c Defense Affairs NATO Specom-1967 tabs 23 5 through 9 III Records of the Deputy Special Assistant for Politico-Military Affairs Subject Files of the Special Assistant for Arms Control and Aerospace 1958-1966 NND 989528 a box 5 file “Nuclear Weapons-Gilpatric Committee 1964 tabs 4 through 8 b box 12 tabs 1-86 through 1-102 47 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 48 of 55 IV Records of the Deputy Special Assistant for Politico-Military Affairs Records Relating to Arms Control and Disarmament 1961-1966 NND 98527 box 4 tabs 4 2 and 4 6 216 Through a letter dated July 1 2016 NARA informed the Archive that DOD had withheld several documents in part or exempted them in their entirety 217 On July 27 2016 the Archive filed an administrative appeal with NARA seeking further declassification review of the denied information and limited to three documents described in detail in the appeal 218 On January 6 2017 DOD received the Archive’s appeal 49 State Department Records on Nuclear Relations with Canada Archive Request No 951407NAR038 Agency Case No 12-A0081-A1 219 By letter dated December 11 1995 the Archive sought from NARA disclosure of • 220 Copies of documents from record group 59 Department of State records Special Assistant to the Secretary for Atomic Energy and Disarmament NND 949671 as indicated on the attachment Through a letter dated June 9 2016 DOD through NARA informed the Archive that several documents had been released in part or exempted in their entirety as responsive to the Archive’s request 221 On July 20 2016 the Archive filed an administrative appeal with NARA seeking further declassification review of the denied information The Archive limited the appeal to only documents that had been withheld in full in tabs 2 4 15 19 and 21 and to the following excised documents IDs numbers 31422531 31422514 31422690 31422690 31422510 and 31422529 31422477 and 629683 222 On June 5 2017 DOD received the Archive’s appeal 48 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 49 of 55 50 Defense Planning Guidance Archive Request No 20080314DOD025 Agency Case No 09-A-0002-A1 223 By letter dated March 8 2008 the Archive sought disclosure of • Accession 330-94-0070 Retrospect Files of the Under Secretary of Defense for Policy 1 Box 1 Proliferation Control Initiative 2 Box 5 a Presidential Nuclear Initiative b NATO Nuclear Strategic Policy Force Structure HLG 3 Box 6 DPG Selected April Drafts 224 Through email messages DOD informed the Archive that it had released an excised version of the “Defense Planning Guidance FY 1994-1999 ” 225 On October 4 2017 via email the Archive filed an administrative appeal seeking further declassification review of the denied information The Archive explained that with the passage of 25 years since the document was prepared it should be possible to release significantly more of its contents without harm to national security or foreign relations 226 On October 5 2017 DOD acknowledged receipt of the appeal and requested a time extension due to a work overload 51 Defense Department Documents from 1987 Archive Request No 20051660DOD119 Agency Case No 06-A-0393-A1 227 By letter dated November 18 2005 the Archive sought disclosure of • Box 1 of accession 330-89-0023 1987 Official Records Top Secret of The Secretary and Deputy Secretary of Defense and the Executive Assistant to the Secretary and Deputy Secretary of Defense TS a file 334 x43301 WH NSC Green 22 May 87 C1 x43301 WH NSC Green 1 Jun 87 C1 x44946 WH NSC Green 21 Oct 87 C1 x45526 WH NSC Stevens 16 Dec 87 C1 x4594 WH NSC Stevens 28 Dec 87 CR2 49 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 50 of 55 b file 334 NS X41641 WH NSC Green 5 Jan 87 CR2 X41694 ES Lemon 9 Jan 87 C4 x4717 AE Barker 28 Sep 87 C1 c file 34 NSPG X42046 ISA Armitage 11 Feb 87 C1 X43491 ISA Armitage 28 May 87 C1 X44036 WH NSC Green 24 Jul 87 C1 d file 334 SIG X41681 Senior Interagency Group 7 Jan 87 C3 X42775 SIG Intelligence 14 Apr 87 C3 X43131 SIG Intelligence 5 May 87 C4A e file 337 State 42163 USP 25 Feb 87 C1 X51398 Special Tank Session 26 Sep 87 C WI f file 373 24 x1777 WH NSC Green 16 Jan 87 C7 228 Through a letter dated September 29 2017 DOD released two excised documents from 1987 and further informed the Archive that an additional document had been denied in its entirety 229 On November 1 2017 the Archive filed an administrative appeal seeking further declassification review of the denied information The Archive explained that with the passage of 30 years since the document was prepared it should be possible to release significantly more of its contents without harm to national security or foreign relations 230 On November 1 2017 DOD received the Archive’s appeal and requested a time extension due to a work overload COUNT I Violation of FOIA by Failing to Timely Process the Archive’s Appeals 231 The Archive hereby incorporates the allegations in ¶¶ 1–230 above 50 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 51 of 55 232 DOD has failed to comply with the statutory time limits in 5 U S C § 552 a 6 A ii and a 6 B with respect to Requests 1–51 above 233 The Archive has therefore exhausted its administrative remedies under 5 U S C § 552 a 6 C is entitled to judicial review of DOD’s FOIA withholdings under 5 U S C § 552 a 4 B 234 Pursuant to 5 U S C § 552 a 4 B this Court has the authority to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from The Archive 235 DOD has not to date made the Archive aware of any “unpredictable” FOIA workload that could support a showing of “exceptional circumstances” under 5 U S C § 552 a 6 C nor has DOD made “reasonable progress in reducing its backlog” of pending FOIA appeals 236 The Archive is therefore entitled to injunctive relief including the declassification and release of requested records under 5 U S C § 552 a 4 B or prompt completion by DOD of the pending appeals and prompt release of any documents declassified following such review COUNT II Ongoing Violation of FOIA by Engaging in a Pattern or Practice of Undue Delay in Processing FOIA Appeals 237 The Archive incorporates the allegations set forth in ¶¶ 1–230 as if set forth fully 238 DOD’s failure to timely process the Archive’s fifty-one pending appeals many herein now more than ten years old demonstrates a pattern and practice of unexplained and unjustified delay in processing FOIA appeals 51 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 52 of 55 239 This pattern or practice includes failing to process FOIA appeals within the statutory time limits established in 5 U S C § 552 a 6 A 240 This pattern or practice also includes DOD’s repeated failure to set forth any “unusual circumstances” resulting in such delays or to specify any alternative timeframe for processing an appeal under 5 U S C § 552 a 6 B 241 DOD’s pattern or practice of failing to timely process the Archive’s FOIA appeals has hindered the Archive’s mission of documenting major elements of the U S nuclear posture and making such declassified information widely available to scholars and the interested public 242 This pattern or practice will also continue to injure the Archive going forward because continuing to submit FOIA requests to DOD and to appeal regarding any documents withheld in response to those requests remains critical to the Archive’s mission 243 The Archive is therefore entitled to injunctive relief that in addition to addressing the fifty-one appeals at issue in this case compels DOD to improve its processes for handling FOIA appeals so that future appeals by the Archive do not remain in limbo for more than a decade COUNT III Ongoing Violation of FOIA by Engaging in a Pattern or Practice of Undue Delay in Releasing Records Presumptively Subject to Automatic Declassification 244 The Archive incorporates the allegations set forth in ¶¶ 1–230 as if set forth fully 245 Section 3 3 h of Executive Order 13529 provides that classified records “shall be herein automatically declassified on December 31 of a year that is no more than 50 years from the date of origin” unless they would “clearly and demonstrably be expected to reveal the identity of a 52 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 53 of 55 confidential human source or a human intelligence source or key design concepts of weapons of mass destruction ” 246 The Archive’s Requests 2 4 5–10 12–13 15–16 20 22 23 26 30 32–37 43– 46 and 48–49 above seek records that are more than 50 years old 247 DOD has not indicated that it is withholding documents in response to these requests because they would reveal human sources intelligence sources or key weapons design concepts 248 The records sought in these Requests should thus have been automatically classified prior to the date of this Complaint 249 DOD’s failure to timely process these particular appeals thus demonstrates a pattern and practice of unexplained and unjustified delay in processing FOIA appeals for which no elaborate or extensive review process should be required 250 This pattern or practice injures the Archive both retrospectively and prospectively in the same manner described in Paragraphs 241–42 above 251 The Archive is therefore entitled to injunctive relief that in addition to providing the relief sought in Counts I and II above compels DOD to promptly handle FOIA appeals seeking documents more than 50 years old and thus presumptively subject to automatic declassification so that future appeals by the Archive seeking such records do not unnecessarily remain in limbo for more than a decade REQUEST FOR RELIEF WHEREFORE the Archive asks that this Court a Expedite this case in accordance with 28 U S C § 1657 a 53 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 54 of 55 b Declare DOD’s continued delay in processing the Archive’s appeals unlawful under FOIA c Declare that DOD has engaged in a pattern or practice of unlawful delay in processing FOIA appeals d Declare that DOD has engaged in a pattern or practice of unlawful delay in declassifying and releasing records presumptively subject to automatic declassification e Order DOD to declassify and release all records at issue that are no longer properly classified under Executive Order 13529 f Order DOD to promptly resolve all of the Archive’s outstanding appeals on a reasonable timeline g Award the Archive its costs and reasonable attorneys’ fees incurred in bringing this action pursuant to 5 U S C § 552 a 4 E and h Grant such other relief as the Court deems just and proper Dated December 23 2021 Respectfully submitted _______________________ Ryan E Griffin DC Bar Number 1007078 Daniel M Rosenthal DC Bar Number 1010473 James Hoffman P C 1629 K Street NW Suite 1050 Washington DC 20006 202 496-0500 telephone 202 496-0555 facsimile regriffin@jamhoff com 54 Case 1 21-cv-03358 Document 1 Filed 12 23 21 Page 55 of 55 Malik Baker DC Bar Number 1737250 National Security Archive Fund Inc 2130 H Street NW Suite 701 The Gelman Library Washington DC 20037 505 688-0305 mabaker@gwu edu Counsel for Plaintiff National Security Archive Fund Inc 55