January 10, 1983, New York Times, Appeals Court Rebukes C.I.A. in Jonestown Information Case, by Irvin Molotsky,
WASHINGTON, Jan. 9— A three-judge panel of the United States Court of Appeals has ruled that the Central Intelligence Agency acted improperly when it failed to respond promptly and fully to a journalist's request for information about the suicides and murders four years ago in Jonestown, Guyana.
Two of the judges ruled that the agency had acted in ''bad faith.'' The third, while agreeing that the agency's action may have been ''far from exemplary,'' said that it could have been caused by ''bureaucratic inefficiency.''
As a result, the panel ordered the Federal District Court to reconsider the request by the journalist, Fielding M. McGehee 3d, for additional files of the intelligence agency under the Freedom of Information Act.
More than 900 Americans, members of a commune created by the People's Temple led by the Rev. Jim Jones, died in Jonestown. On Nov. 18, 1978, Mr. Jones gathered them together and directed that they drink poisoned punch.
Mr. McGehee went to the agency for information expecting that it would have carried out an inquiry in such a case. Mr. McGehee's lawyer said that her client had a professional as well as a personal concern with Jonestown.
'A Major Direct Signal'
Mr. McGehee's lawyer, Katherine A. Meyer, said that the appeals court ruling was significant because it constituted ''a major direct signal'' to the intelligence agency that the court was ''not going to tolerate egregious procedural barriers that the C.I.A. has applied to use of the Freedom of Information Act.''
A spokesman for the agency, Dale Peterson, said on Friday that there would be no immediate comment and no immediate decision on whether an appeal would be filed, since the 41-page decision was still being reviewed. The agency has often resisted such requests on the ground that the identity of intelligence sources might be learned.
The decision, written by Judge Harry T. Edwards, said the agency's failure to tell several of its divisions of the request for information ''casts some doubt on the thoroughness of the agency's initial investigation.''
Mr. McGehee, the decision said, filed his first request on Dec. 6, 1978, and modified it on Dec. 22. Some work was performed, with Judge Edwards calling it an ''initial flurry of activity,'' but he found that from January 1979 to December 1980, ''the agency did virtually nothing about McGehee's request.''
On Nov. 21, 1980, Mr. McGehee filed a suit in Federal district court seeking a response and the court ordered the agency to respond by May 5, 1981. The response disclosed that the C.I.A. had 84 documents on Jonestown.
Of those, 12 documents were provided in full to Mr. McGehee, but, on national security grounds, 18 were provided with substantial deletions and 26 were withheld altogether. The rest had been returned to other Government agencies from which the intelligence agency had originally obtained them: 27 from the State Department and one from the Federal Bureau of Investigation. Ruled Not 'Agency Records'
The Federal court decision, by Judge Oliver Gash, accepted the agency's argument that because the documents in the last two categories had originally been compiled by another agency, they were not ''agency records'' as defined.
Judge Edwards found that argument ''rather implausible.'' Writing for himself and Judge J. Skelly Wright, Judge Edwards said: ''If records obtained from other agencies could not be reached by a Freedom of Information Act request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access.
''The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not 'agency records.' The net effect could be wholly to frustrate the purposes of the act.''
In a footnote, Judge Edwards wrote that the circumstances ''do indeed suggest that the agency has not acted in good faith.'' The appellate decision also accepted the argument of Mr. McGehee's lawyer, Miss Meyer, attacking an internal rule of the Central Intelligence Agency that had the effect of limiting a search to materials held by the agency at the time of the initial request.
Judge Edwards said that ''we would be very hard pressed to sustain the agency's actions'' in that regard. ''The C.I.A. took almost two and one-half years to respond to McGehee's request,'' he said. ''Yet, when it finally released documents, the C.I.A. chose to limit itself to records that originiated with and were possessed by the agency during the first 35 days following the Jonestown tragedy.''
