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118568488
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JGR/FOIA (Freedom of Information Act) (6 of 6)
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118568488
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JGR/FOIA (Freedom of Information Act) (6 of 6)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Roberts, John G.: Files Folder Title: JGR/FOIA (Freedom of Information Act) (6 of 6) Box: 26 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ WITHDRAWAL SHEET Ronald Reagan Library Collection Name Withdrawer SMF 8/30/2005 File Folder JGR/FOIA (FREEDOM OF INFORMATION ACT) (6 OF 6) FOIA F05-139/01 Box Number 26 COOK SF-7 DOC Doc Type Document Description No of Doc Date Restrictions NO Pages 1 MEMO HALL TO FIELDING (PARTIAL) 1 9/21/1984 B6 876 263257 2 MEMO ROBERTS TO L. JEFFREY ROSS 1 5/22/1985 B6 877 (PARTIAL) 284562 3 MEMO ROSS TO FIELDING (PARTIAL) 1 4/2/1985 B6 879 309384 in COPY - Reagan Presidential Record Freedom of Information Act - [5 U.S.C. 552(b)] B-1 National security classified information [(b)(1) of the FOIA] B-2 Release would disclose Internal personnel rules and practices of an agency [(b)(2) of the FOIA] B-3 Release would violate a Federal statute [(b)(3) of the FOIA] B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA] B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA] B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA] B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA] B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA] E.O. 13233 C. Closed in accordance with restrictions contained in donor's deed of gift. THE WHITE HOUSE WASHINGTON October 19, 1984 MEMORANDUM FOR JAMES K. HALL CHIEF, FOI/PA SECTION FEDERAL BUREAU OF INVESTIGATION FROM: ASSOCIATE COUNSEL 8262 TO THE PRESIDENT JOHN G. ROBERTS SUBJECT: FOI/PA Request of Gordon Cavanaugh FBI FOI/PA #238, 859-001 By memorandum dated September 21, 1984, you asked for our views on the release of two documents with information originating in the White House in response to the above- referenced FOIA request. Our office has no objection to the release of these documents. Attachment ID # CU FE010-01 Dg 0 OUTGOING WHITE HOUSE CORRESPONDENCE TRACKING WORKSHEET H . INTERNAL JR- due I . INCOMING Date Correspondence Received (YY/MM/DD) / / w the -> Name of Correspondent: James K. Hall MI Mail Report User Codes: (A) (B) (C) Subject: FOI/PA Request of Mordon Caranaugh FBI FOI/PA #238, 859-001 ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD CULtolland ORIGINATOR KIG 84/109125 / / Referral Note: CUAT18 R 08/109,26 5 84,10,06 Referral Note: / / / / Referral Note: / / / / - Referral Note: / / / / Referral Note: ACTION CODES: DISPOSITION CODES: A - Appropriate Action i * Info Copy Only/No Action Necessary A Answered C Completed C - Comment/Recommendation R - - Direct Reply w/Copy B - Non-Special Referral S Suspended D Draft Response S For Signature F - Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE: Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 263257CK STATE U.S. Department of Justice 8 Federal Bureau of Investigation Washington. D.C. 20535 21 SEP 1984 COPY - Reagan Presidential Record To: Mr. Fred Fielding General Counsel The White House 1600 Pennsylvania Avenue, N.W. Washington, D. C. 20500 gkth. Chief Freedom of Information/Privacy Acts Section Federal Bureau of Investigation Subject: FOI/PA REQUEST OF FBI FOI/PA The responsive files of the FBI contain two documents with information originating with the White House. I am referring the enclosed documents to you for any comments or recommendations you may have as to the sensitivity of this material. A copy of the requester's initial letter is enclosed. Should you have any questions please contact Francine M. Greeson on 324-5548. Enclosures (3) THE WHITE HOUSE WASHINGTON October 19, 1984 MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS one SUBJECT: FOI/PA Request of Mark Allen FBI/FOI/PA #211, 326 Regarding House Select Committee on Assassinations (HSCA) By two separate memoranda, both dated October 9, the FBI has asked for our views on the release of documents originating in the White House that are responsive to the above-referenced FOIA request. The first item is a 1975 letter to President Ford from a private citizen, explaining a theory about the assassination of President Kennedy. I see no reason to withhold the letter. The second item is a telegram dated May 22, 1967 to the President from Marguerite Oswald, and a note of the same date from a White House staffer simply transmitting the telegram to the FBI. In her telegram Mrs. Oswald complains about FBI surveillance in connection with a visit to Dallas by Vice President Humphrey. I see no reason to object to the release of this item. An appropriate memorandum is attached for your review and signature. Attachment THE WHITE HOUSE WASHINGTON October 19, 1984 MEMORANDUM FOR JAMES K. HALL CHIEF, FOI/PA SECTION FEDERAL BUREAU OF INVESTIGATION FROM: FRED F. FIELDING Orig. signed by FFF COUNSEL TO THE PRESIDENT SUBJECT: FOI/PA Request of Mark Allen FBI/FOI/PA #211, 326 Regarding House Select Committee on Assassinations (HSCA) By separate memoranda dated October 9, 1984, you requested our views on two items originating in the White House that are responsive to the above-referenced FOIA request. The items are a letter to President Ford from R.B. Cutler and a telegram of May 22, 1967 to the President from Marguerite Oswald, together with a transmittal note sending the telegram from the White House to the Bureau. I have no objection to the release of these items. FFF:JGR:aea 10/19/84 CC: FFielding/JGRoberts/Subj/Chron THE WHITE HOUSE WASHINGTON October 19, 1984 MEMORANDUM FOR JAMES K. HALL CHIEF, FOI/PA SECTION FEDERAL BUREAU OF INVESTIGATION FROM: FRED F. FIELDING COUNSEL TO THE PRESIDENT SUBJECT: FOI/PA Request of Mark Allen FBI/FOI/PA #211, 326 Regarding House Select Committee on Assassinations (HSCA) By separate memoranda dated October 9, 1984, you requested our views on two items originating in the White House that are responsive to the above-referenced FOIA request. The items are a letter to President Ford from R.B. Cutler and a telegram of May 22, 1967 to the President from Marguerite Oswald, together with a transmittal note sending the telegram from the White House to the Bureau. I have no objection to the release of these items. FFF: JGR:aea 10/19/84 CC: FFFielding/JGRoberts/Subj/Chron ID #. 265835 CU JV WHITE HOUSE FE01001 CORRESPONDENCE TRACKING WORKSHEET o OUTGOING H INTERNAL I - INCOMING Date Correspondence Received (YY/MM/DD) / / Name of Correspondent: James K. Hall MI Mail Report User Codes: (A) (B) (C) Subject: FOI/PA Request of mark allen FBI/ KOIL PA II 211, 326 re: House select Committee in Marossinations (HSCA) ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD Cultalland ORIGINATOR 84,10,11 WS / / WAT18 Referral Note: I 84,10,12 84,10,22 Referral Note: WS / / / WAS - Referral Note: / / / / - Referral Note: / / / / - Referral Note: ACTION CODES: DISPOSITION CODES: A * Appropriate Action I . Info Copy Only/No Action Necessary A Answered C Completed C - Comment/Recommendation R . Direct Reply w/Copy B. - Non-Special Referral S Suspended D Draft Response S For Signature F - Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE: Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 THE GENERATION AFTER COMMITTED TO THE LESSONS OF THE HOLOCAUST BOX 364 BAYCHESTER STATION NEW YORK, N. Y. 10469 February 8, 1985 REGISTERED MAIL Fred F. Fielding, Esq. Counsel to the President Office of the Counsel to the President The White House, 2/WW 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500 Hon. Faith R. Whittlesey Assistant to the President for Public Liaison The White House, 2/WW 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500 Freedom of Information Act Officer Executive Office of the President Old Executive Office Building Washington, D.C. 20506 Gentlemen and Ambassador Whittlesey: On January 4, 1985, this organization forwarded a Freedom of Information Act request (copy enclosed) to the last address listed above. That request was received at the White House on January 7, 1985 (see enclosed copy of U.S. Postal Service return receipt). Our FOIA request was precipitated by a report carried in the November 10, 1983 issue of Draugas, a Lithuanian-language newspaper published in Chicago, that Mr. Linas J. Kojelis (Associate Director for Public Liaison, Executive Office of the President) had met privately with various parties who actively oppose the efforts of the Office of Special Investigations, U.S. Fred F. Fielding, Esq. -2- February 8, 1985 Hon. Faith R. Whittlesey Freedom of Information Act Officer Department of Justice (Criminal Division), to investigate and prosecute suspected Nazi war criminals living in the United States. We enthusiastically support OSI and applaud its many successes in these important cases. As you know, the Freedom of Information Act, 5 U.S.C. § 552, provides that the determination of whether to comply with an FOIA request must be made within ten working days after the receipt of the request, and that the requesting party must be notified of that determination "immediately." 5 U.S.C. $ 552 (a) (6). Obviously, the statutorily-prescribed deadline for responding to our request passed some weeks ago. I trust that the failure to respond is attributable to an administrative oversight, and that we will receive the courtesy of a response forthwith, as required by law. If necessary, however, The Generation After is prepared to authorize our counsel to pursue such avenues of relief as may be available. I look forward to your prompt reply. Sincerely, John John Ranz Rany Secretary Enclosures cc: Hon. William French Smith Attorney General of the United States SENDER: Complete Items 1, 2, 3, and 4. PS Form 3811, July 1982 Add your address in the "RETURN TO" space on reverse. (CONSULT POSTMASTER FOR FEES) 1. The following service is requested (check one). Show to whom and date delivered 60, Show to whom, date, and address of delivery 4d 2. RESTRICTED DELIVERY $ (The restricted delivery fee is charged in addition to the return receipt fee.) TOTAL s Freedom of Information At Officer 3. ARTICLE ADDRESSED TO: Executive Office of the president Old Executive Office Building washington, D.C. 20506 4. TYPE OF SERVICE: ARTICLE NUMBER REGISTERED INSURED R.004 - CERTIFIED COD EXPRESS MAIL 067918 (Always obtain signature of addresses or agent) I have received the article described above. SIGNATURE Addressee Authorized agent 5. DATE OF DELIVERY Onfice (may ORFIELD be POSTMARK on reverse side) 6. ADDRESSEE'S ADDRESS (Only RETURN RECEIPT HITAL MAILSE MAIL SE 7. UNABLE TO DELIVER BECAUSE: THE 1985 EMPLOYEE'S INITIALS uses # GPO: 1962-379- THE GENERATION AFTER COMMITTED TO THE LESSONS OF THE HOLOCAUST BOX 364 BAYCHESTER STATION NEW YORK, N. Y. 10469 VIA REGISTERED MAIL January 4, 1985 Freedom of Information Act Officer Executive Office of the President Old Executive Office Building Washington, D.C. 20506 Re: Freedom of Information Act Request Dear Sir or Madam: This is a request made under the Freedom of Information Act as amended (5 U.S.C. S 552). As you know, 5 U.S.C. § 552(e) expressly designates the Executive Office of the President an "agency" subject to the disclosure requirements of the Act. I write to request access to certain documents received by Mr. Linas J. Kojelis (Associate Director for Public Liaison, Executive Office of the President) or by any member of his staff. Specifically, I request access to all such documents received after 1980 from members of the public and/or from private (i.e., non-governmental) organizations which documents refer or relate to any of the following matters: (1) the Office of Special Investigations ("OSI"), Criminal Division, U.S. Department of Justice. Freedom of Information -2- January 4, 1985 Act Officer (2) efforts by the U.S. Department of Justice, or by any of its divisions, sections, offices, agents, officers, or employees to investigate or take legal action against suspected Nazi war criminals, suspected Nazi persecutors, suspected Nazi collaborators, or any individual suspected of ordering, inciting, assisting, or otherwise participating in the persecution of any person in Europe during all or part of the period 1933 to 1945. As used above, the term "documents" refers to any and all kinds of written or graphic matter, of any kind or description, however created, including, but not limited to: letters, papers, books, correspondence, periodicals, memoranda, notes, bulletins, circulars, reports, announcements, advertisements, petitions, transcripts, litigation papers, promotional literature, and affidavits. Under present regulations and case law pertaining to the Freedom of Information Act, I believe that these documents are available to me and to other members of the public. They are not exempted from required disclosure under present interpretations of the Act, and it is believed that the Justice Department would concur that the information must be released under terms of the Freedom of Information Act. Your agency is believed to have custody of these documents, but if it does not I would request prompt notice of their current location. Freedom of Information -3- January 4, 1985 Act Officer If any portion of this request is deemed denied, I request a detailed statement of the reasons for the withholding and an index or similar statement of the nature of the documents withheld. To expedite this request, I would be willing to discuss specific instances of deletion or other exemption claims in advance of a final decision by the agency. In the event of deletions, I request that a reason be stated for each partial denial of access. Pursuant to the provisions of the Act, I promise to pay reasonable charges to cover expenses incurred in searching for and copying these documents, upon presentation of an invoice along with the finished documents. (If search and duplication fees exceed $50, please write to me at the address above for agreement to such charges.) However, I ask that you waive any fees, pursuant to authorization in the Act for reduction or waiver of fees where "furnishing the information can be considered as primarily benefiting the public." I believe that this request plainly fits within that category. If you have any questions regarding this request, please write to me at the address above. I would appreciate your handling this request as Freedom of Information -4- January 4, 1985 Act Officer expeditiously as possible, and I look forward to hearing from you within ten days, as the law requires. Sincerely, John Ram John Ranz Secretary THE WHITE HOUSE WASHINGTON April 23, 1985 MEMORANDUM FOR PATRICIA L. MANN FREEDOM OF INFORMATION OFFICER INTERNATIONAL TRADE ADMINISTRATION FROM: JOHN G. ROBERTS ASSOCIATE COUNSEL TO THE PRESIDENT SUBJECT: FOIA Request from Margaret R. Polito You have asked for our views on the possible release of a White House document responsive to the FOIA request of Margaret R. Polito. I have reviewed the document and have no objection to its disclosure in response to the FOIA request. I assume that the classified paragraph will be expurgated as indicated. ID #. CU Ag WHITE HOUSE FEO10-01 CORRESPONDENCE TRACKING WORKSHEET 0 . OUTGOING H . INTERNAL Confidential attachment I - INCOMING Date Correspondence Received (YY/MM/DD) / / Name of Correspondent: Patriciah mann MI Mail Report User Codes: (A) (B) (C) Subject: Polits FOIA Request from margaret R. ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD WHolland ORIGINATOR aa 8501111 / / Referral Note: WAT18 R $ 85,01,21 Referral Note: / / / / Referral Note: / / / / Referral Note: / / / / Referral Note: ACTION CODES: DISPOSITION CODES: A Appropriate Action I * Info Copy Only/No Action Necessary A Answered C Completed C - Comment/Recommendation R Direct Reply W/Copy B - Non-Special Referral S Suspended D Draft Response S For Signature F - Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE: Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 DEPARTMENT COMMERCE UNITED STATES DEPARTMENT OF COMMERCE International Trade Administration UNITED STATES OF AMERICA Washington, D.C. 20230 284562 CU CONFIDENTIAL JAN 10 1985 Mr. Fred Fielding Counsel to the President The White House Washington, D.C. 20500 Dear Mr. Fielding: The enclosed document (s) was/were identified by the International Trade Administration in responding to a Freedom of Information request from Margaret R. Polito. You are requested to review this/these document (s) for possible declassification and/or release. Indicate any FOI exemptions you believe applicable to the document (s). Please return the document (s) and your recommendations so we may complete our reply to the requester. A copy of the requester's letter and our initial reply is enclosed for your convenience. If you have any questions concerning this referral, you may reach me on 377-3031. Sincerely, atrical Mann Patricia L. Mann Freedom of Information Officer International Trade Administration 3 Enclosures FOI 1984-189 CONFIDENTIAL K23 8/3/05 (This document is automically declassified when classified enclosure is removed.) sn. DEPARTMENT OF COMMERCE FORM ITA-2040 (3-84) TRADE THE WHITE HOUSE WASHINGTON May 22, 1985 MEMORANDUM FOR L. JEFFREY ROSS CHIEF, FOI/PRIVACY ACT UNIT OFFICE OF ENFORCEMENT OPERATIONS COPY Reagan Presidential Record U.S. DEPARTMENT OF JUSTICE FROM: ASSOCIATE JOHN G. ROBERTS COUNSEL JOR TO THE PRESIDENT SUBJECT: Privacy Act Request -- bb You referred records responsive to the above-referenced Privacy Act request which originated in this office to us "for direct reply to the requester.' As a matter of policy the White House does not respond directly to such requests, other than to advise requesters that the White House is not subject to FOIA, see Kissinger V. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980). The proce- dure WE have been following is for the agency to recommend to us a proposed course of action with respect to the responsive White House document, and to inquire if we have any objections to that course of action. All contact with the requester is handled by the agency. This procedure is followed, for example, by the FBI, which receives a large number of Privacy Act requests covering White House documents. With respect to this particular request, we have no objection to your releasing the memorandum from Mr. Fielding to Deputy Attorney General Dinkins dated August 7, 1984, or copies of the materials sent to Mr. 36 Fielding. 309384 ID # CU Ag WHITE HOUSE CORRESPONDENCE TRACKING WORKSHEET o - OUTGOING H . INTERNAL gr I . INCOMING Date Correspondence Received (YY/MM/DD) / / Name of Correspondent: L. Jeffrey Ross MI Mail Report User Codes: (A) (B) (C) Subject: FIIA request - Frank Farkas / CRM- 11677-P ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD Catter ORIGINATOR 85,04,05 / / Referral Note: CUAT 19 K 085104108 Referral Note: / / / / - Referral Note: / / / / I Referral Note: / / / / I Referral Note: ACTION CODES: DISPOSITION CODES: A- - Appropriate Action 1. Info Copy Only/No Action Necessary A. Answered C. Completed C Comment/Recommendation R. Direct Reply w/Copy B. * Non-Special Referral S - Suspended D - Draft Response S. For Signature F Furnish Fact Sheet X. Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 Memorandum 309384 cu Subject Date 2 Privacy Act Request b6 APR 1985 COPY Reagan Presidential Record To From Fred F. Fielding L. Jeffrey Ross, Chief Counsel to the President FOI/Privacy Act Unit The White House Office Office of Enforcement Operations We are processing a Privacy Act request from the person named above. In searching our system CRM-001, we have located the attached records which originated in your office. We are referring these records to you for direct reply to the requester. Also attached is a copy of the request letter for your assistance. The requester has been advised of this referral. Correspondence to us concerning this matter should be addressed to: L. Jeffrey Ross, Chief, Freedom of Information/Privacy Act Unit, Office of Enforcement Operations, Criminal Division, Department of Justice, Washington, D.C. 20530. Attention: Peggy A. Hill, 724-7215. THE WHITE HOUSE FOIA WASHINGTON file May 29, 1985 MEMORANDUM FOR FRED F. FIELDING RICHARD A. HAUSER SHERRIE M. COOKSEY H. LAWRENCE GARRETT III JOHN G. ROBERTS DEBRA OWEN HUGH HEWITT DBW FROM: DAVID B. WALLER SUBJECT: Rushforth VS. Council of Economic Advisers Attached is a copy of the May 24, 1985 opinion of the District of Columbia Circuit unanimously affirming the district court's ruling that the Council of Economic Advisers is not an "agency" subject to the Freedom of Information and Government in the Sunshine Acts. The Court held that notwithstanding references in the legisla- tive history of the FOIA to the CEA as a covered "agency," the controlling test for coverage of an Executive Office unit is that set forth in the Conference Report, viz. whether the unit's "sole function is to advise and assist the President." Soucie V. David, 448 F. 2d 1067, 1075 (D.C. Cir. 1971). Unless an Executive Office unit has some "independent authority or power," such as funding projects or issuing regulations, it will not be deemed a FOIA "agency." Slip op. at 11. Applying this test, the Court held that notwithstanding the "agency" status of other Executive Office units, the CEA is not an "agency" because it has no function beyond advising and assisting the President. Id. With respect to the Sunshine Act, the Court held that since there is no legal requirement that the Council operate collegi- ally, the unrebutted declaration of former Council Chairman Martin Feldstein that the Council does not operate collegially is dispositive. Thus, the Council is not an "agency" subject to either the FOIA or the Sunshine Act. Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Court of Apprals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 84-5428 BRENT N. RUSHFORTH, APPELLANT V. COUNCIL OF ECONOMIC ADVISERS, et al. Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-02632) Argued February 7, 1985 Decided May 24, 1985 Nicholas C. Yost, for appellant. Andrea Newmark, Attorney, Department of Justice, with whom Richard K. Willard, Acting Assistant Attorney General, Department of Justice, Joseph E. diGenova, United States Attorney and Leonard Schaitman, Attor- pellees. ney, Department of Justice were on the brief, for ap- Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. 2 Before: WRIGHT, BORK and STARR, Circuit Judges. After the filed, Mr. R Opinion for the Court filed by Circuit Judge STARR. request. He STARR, Circuit Judge: This action was brought under eight categor the Freedom of Informat 01 Act, 5 U.S.C. $ 552 (1982), ten working and the Government in the Sunshine Act, 5 U.S.C. § 552b plaint" in th (1982), seeking relief from the failure of the Council of ing, appellar Economic Advisers ("CEA" or "Council") to comply with with respect those two statutes. The District Court dismissed the Free- from CEA at dom of Information Act ("FOIA") claim, but also opined within ten II that summary judgment for CEA would be warranted in FOIA reques administratif any event. In addition, the trial court granted summary that its reco: judgment in favor of the CEA on the Government in the Sunshine Act ("Sunshine Act") claim. We affirm. while turning lant,² the CE I Defendant plaint or, alt Brent Rushforth, a Washington, D.C. attorney, sub- trict Court in mitted an FOIA request to CEA for copies of the Coun- dum opinion cil's regulations implementing both FOIA and the Sun- ing summary shine Act. In its response to Mr. Rushforth's inquiry, ment in the S the CEA advanced the position that the Council is not an claim, the CO "agency" for purposes of FOIA and is thus not required In the court to comply with the Act. Appellant thereupon brought suit instance requ in the United States District Court for the District of the court la Columbia, seeking "declaratory, mandatory, and injunctive to adopt an relief from CEA's total failure to comply with either the court went 01 Government in the Sunshine Act or with [FOIA]." standing in 1 Complaint at 1, reprinted in Joint Appendix at 6, 6. be entitled to Specifically, appellant asked the District Court to declare cil is not an CEA in violation of both statutes, to require CEA to adopt regulations implementing both Acts, to enjoin future 1 An FOIA violations of either Act, and to "issue such other and may be treate further relief as may be appropriate." Complaint at 7-8, 552 (a) (6) (C) Joint Appendix at 12-13. Appellant moved for summary 2 Several of judgment; CEA moved for dismissal or, alternatively, for of appellant's summary judgment. public by the to appellant's 3 After the cross-motions for summary judgment were filed, Mr. Rushforth submitted to CEA a second FOIA request. He requested all documents falling into any of eight categories. When no response was received within ten working days,¹ appellant filed a "Supplemental Com- plaint" in the already pending litigation. In that plead- ing, appellant averred that he had requested information with respect to studies, reports, and other documents from CEA and had received no response from the Council within ten working days. He also attached a copy of the FOIA request. When CEA eventually did respond through administrative channels, the Council again maintained that its records were not agency records subject to FOIA; while turning over voluntarily certain materials to appel- lant,² the CEA withheld some of the requested documents. Defendants moved to dismiss the supplemental com- plaint or, alternatively, for summary judgment. The Dis- trict Court in due course entered an order and memoran- dum opinion dismissing appellant's FOIA claim and grant- ing summary judgment in favor of CEA on the Govern- ment in the Sunshine Act claim. With regard to the FOIA claim, the court held, first, that plaintiff lacked standing. In the court's view, Mr. Rushforth had not in the first instance requested a disclosure of existing documents, and the court lacked authority under FOIA to order the CEA to adopt and then release implementing regulations. The court went on to hold, moreover, that even if plaintiff had standing in light of his second FOIA request, CEA would be entitled to summary judgment inasmuch as the Coun- cil is not an "agency" within the meaning of FOIA. As 1 An FOIA request not answered within 10 working days may be treated as denied. See 5 U.S.C. §§ 552 (a) (6) (A) (i), 552 (a) (6) (C). 2 Several of the requested documents had, independently of appellant's FOIA request and this litigation, been made public by the Council and had already been made available to appellant's counsel. 4 to the Sunshine Act claim, the court held that the Act did his positi not apply to CEA inasmuch as the Council is not a cifically - collegial body.³ This appeal followed. FOIA. I was being II The Rep. The first issue before us is whether the CEA is an ment in : "agency" within the meaning of FOIA. The operative this amer statutory provision sets forth the following definition of Council è that term: "For purposes of this section, the term agency 93d Cong includes any executive department, military depart- lant argu ment, Government corporation, Government controlled cor- ments co poration, 01 other establishment in the executive branch FOIA. of the Government (including the Executive Office of the But the President), or any independent regulatory agency." 5 U.S.C. § 552 (e). Plaintiff's argument is simple and quent Co: straightforward: since the CEA is an establishment in port's ot! '[t]he ce the Executive Office of the President, it is subject to FOIA. But the issue is not SO easily resolved. As the Report g. of the te Supreme Court has made clear, 'Executive Office' does ferees in not include the Office of the President Γ, and] 'the F.2d 106 President's immediate personal staff or units in the Execu- tive Office whose sole function is to advise and assist the terpreted staff or u President' are not included within the term 'agency' under is to adv the FOIA." Kissinger v. Reporters Committee for Free- 1380, 93d dom of the Press, 445 U.S. 136, 156 (1980) (quoting No. 1200 H.R. Rep. No. 1380, 93d Cong., 2d Sess. 8 (1974) language While not all units within the Executive Office of the precise is President are subject to FOIA, appellant seeks to buttress Office of to follow 3 Mr. Rushforth clearly had standing as to the Sunshine Act action. See 5 U.S.C. § 552b (g) ("Any person may bring 4 The H a proceeding in the United States District Court for the has been t District of Columbia to require an agency to promulgate such considered regulations within the time period specified herein."). With Code, but regard to the FOIA action, it is undisputed that appellant, in informati his second request, did ask for existing documents. Standing 93d Cong. does, of course, lie as a general matter where a request is ment corp submitted under FOIA for existing documents, as opposed to other esta a request that the agency create materials which did not the U.S. I previously exist. 5 his position by repairing to the legislative history, spe- cifically the House Report on the 1974 amendments to FOIA. That Report states that the definition of "agency" was being expanded from that which previously obtained.⁴ The Report further states that "[t]he term 'establish- ment in the Executive Office of the President,' as used in this amendment, means such functional entities as the Council of Economic Advisers H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974). It is thus clear, as appel- lant argues, that the House version of the 1974 amend- ments contemplated that the CEA would be subject to FOIA. But the House report does not stand alone. The subse- quent Conference Report directly undercuts the House Re- port's otherwise clear expression; while observing that [t]he conference substitute follows the House bill," the Report goes on to say: "[W]ith respect to the meaning of the term 'Executive Office of the President' the con- ferees intend the result reached in Soucie v. David, 448 F.2d 1067 (C.A.D.C. 1971). The term is not to be in- terpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R. Rep. No. 1380, 93d Cong., 2d Sess. 14-15 (1974) ; see also S. Rep. No. 1200, 93d Cong., 2d Sess. 15 (1974) (identical language). Thus, the Conference Report speaks to the precise issue of the meaning of the phrase "Executive Office of the President" and specifically states an intent to follow the result in Soucie, namely determining whether 4 The House Report states that "the definition of 'agency' has been expanded to include those entities which may not be considered agencies under section 551 (1) of title 5, U.S. Code, but which perform governmental functions and control information of interest to the public." H.R. REP. No. 876, 93d Cong., 2d Sess. 8 (1974). Now included were "Govern- ment corporations, Government controlled corporations [and] other establishments within the executive branch, such as the U.S. Postal Service." Id. 6 the sole function of the entity within the Executive Office court obs is to advise and assist the President. Where, as here, the evaluate specific mention of the CEA in the House Report was cies. The dropped and a specific, judicially formulated test was to advise adopted by the Conference Committee for determining the as an inc FOIA status of such entities, the House Report is entitled staff and to little weight in this respect. Manifestly, the Con- istence of ference elected to embrace a test to be substituted for a suant to listing of the entities to be included; the outcome of the functions case before us should, accordingly, turn on an examina- awarding tion of Soucie and the sole-function test enunciated in that formation case. correlatin In Soucie, the issue was whether the Office of Science taken by Those fur and Technology ("OST"), an entity in the Executive In a wor Office of the President, was an agency within the mean- deemed to ing of FOIA. Concluding that OST was indeed a FOIA- cuss infr covered agency, the Soucie court began by observing the point OST's genesis as the creature of an Executive Branch Soucie; b reorganization plan. That plan transferred the functions Soucie is of the National Science Foundation ("NSF" or "the the Coune Foundation") to the OST, an "administrative unit out- side the White House, but in the Executive Office of the The se President on roughly the same basis as the Council support is of Economic Advisers " Soucie, supra, 448 F.2d at ronmenta 1074. However, while this reorganization resulted in an There, th administrative unit located, hierarchically, in the same was held position as CEA, there is no indication that the functional purposes. roles of CEA and OST were the same; and, critically, it are, for was the functional role of the agency on which Soucie U.S.C. 1 turned. appellant sion must In Soucie, the court concluded that "[b]y virtue of its while the independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA by the tw and the Freedom of Information Act." Id. at 1075. The Legal For tions had court reached this conclusion only after expressly taking into account the fact that OST had assumed the func- CEQ coor tions of the National Science Foundation; moreover, the grams, iss 7 court observed that OST was specifically authorized to evaluate the scientific research programs of federal agen- cies. The court stated: "If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency." It was, rather, the ex- istence of the NSF functions, now vested in OST pur- suant to the reorganization, that turned the tide. Those functions included the initiation and support of research, awarding scholarships, fostering the interchange of in- formation and evaluating the status of the sciences in correlating the research and education programs under- taken by the Foundation. See 42 U.S.C. § 1482 (1982). Those functions clearly go beyond advice and assistance. In a word, OST could take direct action and thus was deemed to be an administrative agency. As we will dis- cuss infra, the activities of the CEA and OST differ to the point that the status of CEA is not controlled by Soucie; but at the same time, the test formulated by Soucie is plainly the standard to be applied to determine the Council's status. The second case from which appellant seeks to draw support is Pacific Legal Foundation v. Council on Envi- ronmental Quality, 636 F.2d 1259 (D.C. Cir. 1980). There, the Council on Environmental Quality ("CEQ") was held to be an agency for FOIA and Sunshine Act purposes. Since the statutes organizing CEA and CEQ are, for all practical purposes, identical, compare 15 U.S.C. § 1023 (1982) with 42 U.S.C. § 4342-45 (1982), appellant argues that Pacific Legal Foundation's conclu- sion must carry over and apply to the CEA. However, while the statutes are the same, the functions performed by the two entities differ markedly. The court in Pacific Legal Foundation specifically observed that CEQ's func- tions had been expanded by several executive orders, that CEQ coordinated federal environmental regulatory pro- grams, issued guidelines for preparing environmental im- 8 pact statements, and promulgated regulations for imple- clusion that i menting the procedural provisions of the National Envi- President. E: ronmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 duties is direc (1970). Pacific Legal Foundation, supra, 636 F.2d at to the Presid 1262. Furthermore, in that litigation the CEQ actually admitted that it was an agency; it contended more nar- 6 § 1023. Co rowly that it was not an agency at those times when it (a) Creat was advising the President and that the Sunshine Act chairman did not apply to its advisory function. This court re- There 1. jeeted the CEQ's proffered on again-off again definition dent a Co the "Cour and held that '[o]nce an entity is found to be an members agency, this determination will not vary according to its and with specific function in each individual case.' Id. at 1264 of whom (quoting Ryan v. Dept. of Justice, 617 F.2d 781, 788 ing, exper D.C. Cir. 1980) ) fied to an appraise Pacific Legal Foundation's conclusion-that CEQ is an the light agency-simply does not, on analysis, carry over to the title, and case at hand. The expanded duties of the CEQ clearly policy to took that body out of the realm of entities the sole func- chasing p President tion of which is to advise and assist the President. CEA's Council a: duties, in contrast, have not similarly been expanded. act as cha CEA simply has no independent authority such as that (b) Emp enjoyed either by CEQ or OST.° personnel Our task, then, is to apply Soucie's sole-function test to The Co the role of CEA. Doing so leads ineluctably to the con- pensation be necess Noting the near identity of the statutes creating CEQ this chap and CEA, appellant mounts a policy argument that the is author President should not be allowed to take an entity out of, or such othe an entity in, FOIA agency status by the mere expedient carrying Payliting or eliminating duties. This argument is unavailing. their con intent would appear to have been to require entities subchapt authority and the ability to act, but not those whose (c) Duti sale function was to render advice and assistance to the It shal President, to be subject to FOIA. If the President adds duties an entity which bring it outside the sole-function test, (1) Congress would want the entity to be covered. There is no arat reason why any other entity with a similarly worded organic (2) statute should be dragged along with it. conc 9 clusion that its sole function is to advise and assist the President. Each one of the CEA's enumerated statutory duties is directed at providing such advice and assistance to the President.⁶ While appellant emphasizes that in 6 $ 1023. Council of Economic Advisers (a) Creation; composition; qualifications: selection of chairman and vice chairman There is created in the Executive Office of the Presi- dent a Council of Economic Advisers (hereinafter called the "Council"). The Council shall be composed of three members who shall be appointed by the President by and with the advice and consent of the Senate, and each of whom shall be a person who, as a result of his train- ing, experience, and attainments, is exceptionally quali- fied to analyze and interpret economic developments, to appraise programs and activities of the Government in the light of the policy declared in section 1021 of this title, and to formulate and recommend national economic policy to promote full employment. production, and pur- chasing power under free competitive enterprise. The President shall designate one of the members of the Council as chairman and one as vice chairman, who shall act as chairman in the absence of the chairman. (b) Employment of specialists, experts, and other personnel The Council is authorized to employ, and fix the com- pensation of, such specialists and other experts as may be necessary for the carrying out of its functions under this chapter, without regard to the civil-service laws, and is authorized, subject to the civil-service laws, to employ such other officers and employees as may be necessary for carrying out its functions under this chapter, and fix their compensation in accordance with chapter 51 and subchapter III of chapter 53 of title 5. (c) Duties It shall be the duty and function of the Council- (1) to assist and advise the President in the prep- aration of the Economic Report; (2) to gather timely and authoritative information concerning economic developments and economic 10 each instance the language "to the President" appears as utory polity and part of a conjunction, that fact does not affect the conclu- in that regard. sion fairly to be drawn. For example, the CEA is directed appraise 13 dire to appraise federal programs relative to a particular stat- make recommen under the statut trends, both current and prospective, to analyze and interpret such information in the light of the policy appraisal. as OS declared in section 1021 of this title for the purpose crocedures based of determining whether such developments and We can disce: trends are interfering, or are likely to interfere, with the achievement of such policy, and to compile that CEA has and submit to the President studies relating to such assisting the F developments and trends; brought firward (3) to appraise the various programs and activities exists. The vari of the Federal Government in the light of the policy by appellant, do declared in section 1021 of this title for the purpose or power. in of determining the extent to which they are con- tributing, and the extent to which they are not contributing, to the achievement of such policy, and local go to make recommendations to the President with re- visable, establis) spect thereto: (4) to develop and recommend to the President na- 21 the tional economic policies to foster and promote free unlize i competitive enterprise including small and larger cluding business, to avoid economic fluctuations or to di- agencies minish the effects thereof, and to maintain full order t. employment, production, and purchasing power; avoided (5) to make and furnish such studies, reports there- In its work on, and recommendations with respect to matters and Balance of Federal economic policy and legislation as the seq. (1982) President may request. and totain independent (d) Annual report studies esse: The Council shall make an annual report to the Presi- (f) Approp dent in December of each year. To enable (e) Consultation with other groups and agencies; utili- and duties I zation of Governmental services and private research appropriate agencies In exercising its powers, functions and duties under 15 U.S.C. 600 1023 this chapter— 7 Appellant ar (1) the Council may constitute such advisory com- are appointed W mittees and may consult with such representatives of are required to industry, agriculture, labor, consumers, State and portant weight. 11 utory policy and make recommendations to the President in that regard. 15 U.S.C. § 1023 (c) (3). The duty to appraise is directly connected to the Council's duty to make recommendations. CEA has no regulatory power under the statute. It cannot fund projects based on the appraisal, as OST might, nor can it issue regulations for procedures based on the appraisals, as CEQ might. We can discern no basis in the statute for concluding that CEA has any function save that of advising and assisting the President. Nor has any evidence been brought forward to show that some other function in fact exists. The various acts of CEA members, as enumerated by appellant, do not evidence any independent authority or power; 7 in consequence, we agree with Judge Ober- local government, and other groups, as it deems ad- visable, and shall consult with the board or boards established under section 1022f of this title; (2) the Council shall, to the fullest extent possible, utilize the services, facilities, and information (in- cluding statistical information) of other Government agencies as well as of private research agencies, in order that duplication of effort and expense may be avoided. In its work under this chapter and the Full Employment and Balanced Growth Act of 1978 [15 U.S.C. §§ 3101 et seq. (1982) ] the Council is authorized and directed to seek and obtain the cooperation of the various executive and independent agencies in the development of specialized studies essential to its responsibilities. (f) Appropriations To enable the Council to exercise its powers, functions, and duties under this chapter, there are authorized to be appropriated such sums as may be necessary. 15 U.S.C. $ 1023 (1982). 7 Appellant argues that the fact that the members of CEA are appointed with the advice and consent of the Senate and are required to testify before the Congress should carry im- portant weight. Neither the nature of the appointment nor 12 dorfer's conclusion that CEA should not be considered an three men agency for purposes of the FOIA. later bein structure III roughly C Inasmuch as the Council of Economic Advisers is not statute al an agency for FOIA purposes, it follows of necessity that and does the CEA is, under the terms of the Sunshine Act, not subject to that statute either. The reason is that the The CE Sunshine Act expressly incorporates the FOIA definition of the Co of agency. See 5 U.S.C. § 552b (a) (1) ("the term 'agency' organizati means any agency as defined in section 552 (e) "). Stat. 644 Furthermore, even if CEA were an agency within the negated a meaning of FOIA, the Council would still not fall within by the sta the 1953 the scope of the Sunshine Act. The pertinent definition, set forth in section 552b, continues as follows: An agency agement President for purposes of section 552b is one "headed by a collegial the Count body composed of two 01' more individual members, a ma- that the jority of whom are appointed to such positions by the Council in President with the advice and consent of the Senate Id. The District Court held that CEA is not a collegial legial. W body. If that conclusion is correct, CEA is not subject to entity cot tivities of the Act. does not First, the District Court determined, based on the dec- the agenc laration of then-CEA Chairman Martin Feldstein, that the CEA does not in fact operate collegially. That dec- While - laration is unrebutted; hence, to the extent that the ques- may not tion is one of fact, the Feldstein declaration would be ing notice fully adequate to support the court's grant of summary in the sta judgment in favor of the Council. However, if the CEA a requirer is legally constituted as a collegial body, its actual mode that the ( of operation might weigh less heavily in our analysis. we conclu to the Sur By its terms, the organic statute creating the CEA ap- pears to envision a collegial group. After all, the statute Appella creates a "Council" of advisers. The Council consists of trary to ment rest the accompanying duty to testify before Congress, however, creating speaks to the function of the CEA; it is, at bottom, its function that determines an entity's status for FOIA purposes. 8 See sur 13 three members confirmed by the Senate, with one member later being designated by the President as chairman. This structure might reasonably be construed to suggest roughly co-equal status among the three members. The statute also speaks of various activities of the "Council" and does little or nothing to separate out the chairman.8 The CEA was reorganized in 1953, and administration of the Council was centralized in the chairman. See Re- organization Plan No. 9 of 1953, 18 Fed. Reg. 4543, 67 Stat. 644 (1953). However, it is not clear that the plan negated any collegiality that might otherwise be reflected by the statute. The increased responsibility enunciated in the 1953 Reorganization Plan spoke primarily to man- agement of the Council's staff. The duty to report to the President was also vested in the chairman, rather than the Council. Appellant argues from all this that the fact that the chairman is to report on the activities of the Council indicates that the entity's action is joint and col- legial. We are unpersuaded. Any head of a multi-member entity could, of course, be instructed to report on the ac- tivities of his or her agency. Such an instruction simply does not translate into a requirement that he 01' she run the agency collegially. While there is language in the statute (that may or may not be weakened by the Reorganization Plan) evok- ing notions of collegiality, we can discern no requirement in the statute that the CEA must be SO run. Absent such a requirement, and given the unrefuted factual averment that the Council is not and has not been run collegially, we conclude that the CEA is not a collegial group subject to the Sunshine Act. Appellant argues that this conclusion would be con- trary to Pacific Legal Foundation, supra, but his argu- ment rests, at bottom, on the near identity of the statutes creating CEA and CEQ. Since the two entities have in 8 See supra note 6. 14 time evolved differently in their functions and would ap- pear in actual practice to operate quite differently, see Pacific Legal Foundation, supra, 636 F.2d at 1265-66 (indicating that at least some CEQ business requires an affirmative vote of two members), the status of those two entities under the Sunshine Act simply need not be the same. IV The judgment of the District Court as to both the FOIA and Sunshine Act claims is, for the foregoing reasons, Affirmed. dame - I " of first decision in FOIA file THE DAILY WASHINGTON Law Reporter 16 AM 51 Established 1874 U.S. Court of Appeals for the D.C. Circuit D.C. Court of Appeals D.C. Superior Court GOVERNMENT INFORMATION CRIMINAL LAW & PROCEDURE CRIMINAL LAW & PROCEDURE COUNCIL OF ECONOMIC ADVISERS FINGERPRINT EVIDENCE PERJURY Council of Economic Advisers is not an "agency" Under circumstances which do not rule out inno- Court refers to U.S. Attorney 4 cases in which for purposes of Freedom of Information Act and cent explanation, evidence based on fingerprint is there was apparent perjury or fabrication of Government in the Sunshine Act. held not to support burglary conviction. evidence. RUSHFORTH V. COUNCIL OF ECONOMIC RHYNE V. UNITED STATES, D.C.App. No. NELLUM V. NELLUM, Sup.Ct., D.C., No. ADVISERS, ET AL., U.S.App.D.C. No. 83-462, May 20, 1985. Reversed per Newman, J. D-3951-81, SMITH V. SMITH, No. D-2774-80, 84-5428, May 24, 1985. Affirmed per Starr, J. (Mack, J. concurs; Nebeker, J. concurs in result). GADDY V. GADDY, No. D-2809-73, McFAD- (Wright and Bork, JJ. concur). Nicholas C. Yost Martha J. Tomich, Appellate Law Fellow, ap- DEN V. McFADDEN, No. D-3394-79, May 30, for appellant. Andrea Newmark with Richard K. pointed by this court, with Steven H. Goldblatt, 1985. Opinion per Schwelb, J. Edward W. Willard, Joseph E. diGenova and Leonard Susan L. Siegal, Appellate Law Fellow, Susan Abramowitz for Judith R. Nellum. Elizabeth Schaitman for appellees. Trial Court-Ober- McGoldrick and John Meagher, Law Students, Guhring for Albert L. Nellum. Donald T. Cheath- dorfer, J. for appellant. Kenneth J. Melilli with Joseph E. am for Theresa O. Smith. Robert E. Smith, STARR, J.: This action was brought under the diGenova, Michael W. Farrell and Ronald Dixon Defendant., Pro Se. Stephen M. Nassau for Freedom of Information Act, 5 U.S.C. $552 for appellee. Trial Court-Goodrich, J. Doris M. Gaddy. Mabel D. Haden for Roy J. Gad- (1982), and the Government in the Sunshine Act, dy. Jeffrey Ford for Diane M. McFadden. Angela NEWMAN, J.: Rhyne asserts that his convic- Plater for Maxcell McFadden. 5 U.S.C. $552b (1982), seeking relief from the tions for burglary and grand larceny must be failure of the Council of Economic Advisers reversed because of evidentiary insufficiency SCHWELB, J.: Lying under oath is not un- ("CEA" or "Council") to comply with those two and prosecutorial misconduct. Since we agree common in domestic relations cases in our Court. statutes. The District Court dismissed the with his first contention, we need not reach his Referring to child custody litigation in par- Freedom of Information Act ("FOIA") claim, second one. We reverse, concluding that viewing ticular, Chief Judge Hood remarked in Coles V. but also opined that summary judgment for CEA the evidence in its light most favorable to the Coles, 204 A.2d 330, 331-332 (D.C. 1964) that would be warranted in any event. In addition, government, including all reasonable inferences, the trial court granted summary judgment in out of a maze of conflicting testimony, usually Miller v. United States, 479 A.2d 862, 864 (D.C. favor of the CEA on the Government in the Sun- including a 'tolerable amount of perjury,' the 1984), it is insufficient to sustain the convictions. shine Act ("Sunshine Act") claim. We affirm. judge must make a decision which will in- During June 1981, the victims (the Matthews) evitably affect materially the future life of an The first issue before us is whether the CEA is hired Rhyne to do certain home repair work. innocent child. an "agency" within the meaning of FOIA. The Some of this work required Rhyne to enter the operative statutory provision sets forth the house, but it did not require that he enter the liv- Financial disputes between former marital part- following definition of that term: "For purposes ing room (the room from which the proceeds of ners over child support and alimony often bring of this section, the term agency includes the larceny were taken). During the course of his out a similar disregard for the truth. any executive department, military department, employment, Rhyne occasionally entered the In the Family Motions Branch, this Court has house to eat, drink and to use the bathroom or encountered an extremely troubling scenario Government corporation, Government control- led corporation, or other establishment in the ex- telephone. None of these purposes required that several times each week. The following state of he enter the living room. In connection with the facts is illustrative. A wife files the requisite ecutive branch of the Government (including the work, Rhyne occasionally used Matthews' ladder financial statement. In it, she recites that her Executive Office of the President), or any in- which was stored outside the house and which monthly net income is $1,500, her monthly ex- dependent regulatory agency." 5 U.S.C. $552(e). Plaintiff's argument is simple and straightfor- was long enough to reach the second floor of the penses $2,500. She is sworn, and testifies that house where there were windows which were the financial statement is accurate. The Court in- ward: since the CEA is an establishment in the generally unlocked. A back door key was kept quires 1 if the listed expenses are actual or pro- Executive Office of the President, it is subject to outside the house in a location of which Rhyne jected, and she replies that they indeed repre- FOIA. But the issue is not SO easily resolved. As the Supreme Court has made clear, " 'Executive became aware. Rhyne never completed the work sent an average of what she has been spending. Office' does not include the Office of the Presi- and abandoned the job in mid-July. The Court asks how long she has been losing about $1,000 each month, and she testifies that dent [, and] 'the President's immediate per- Bristol, the housekeeper, testified that on July sonal staff or units in the Executive Office whose 23, 1981, the day on which she left for vacation, this has been going on for two years. The Court turns to the back of her financial statement and, sole function is to advise and assist the Presi- she dusted the furniture, including the stereo equipment in the living room. A crime scene noting liabilities totalling only $500, asks the dent' are not included within the term 'agency' wife how she has managed to confine her debts under the FOIA." Kissinger v. Reporters Com- search officer testified that thorough dusting of to that amount when she should logically have mittee for Freedom of the Press, 445 U.S. 136, a smooth surface would obliterate or smudge a fingerprint thereon. acquired a deficit of $24,000 in the past two 156 (1980) (quoting H.R. Rep. No. 1380, 93d Cong., 2d Sess. 8 (1974)). On or about August 4, the Matthews' resi- (Cont'd. on p. 1425 Perjury) dence was burglarized, and stereo equipment 1. For reasons as to which the Court will not speculate, oppos- The subsequent Conference Report with an approximate value of $250 was stolen. A ing counsel seldom cross-examine in this fashion. directly undercuts the House Report's otherwise crime scene search officer (Wilson) dusted for clear expression; while observing that "[t]he con- fingerprints. Nine latent lifts were recovered TABLE OF CASES ference substitute follows the House bill," the from the turntable dust cover which the burglar Report goes on to say: "[W]ith respect to the would have touched in taking the stereo equip- U.S. Court of Appeals (D.C. Circuit) meaning of the term 'Executive Office of the ment; one of the prints was of Rhyne's thumb. Rushforth V. Council of Economic President' the conferees intend the result reach- Wilson testified that Rhyne's print was Advisers, et al 1421 ed in Soucie v. David, 448 F.2d 1067 (C.A.D.C. recovered from the side of the dust cover, 1971). The term is not to be interpreted as in- although the document containing the latent lift D.C. Court of Appeals cluding the President's immediate personal staff indicates that it was taken from the top of the Rhyne V. United States 1421 or units in the Executive Office whose sole func- outside surface of the cover. Wilson testified D.C. Superior Court tion is to advise and assist the President." H.R. that prints would remain on surface for an in- Nellum V. Nellum; Smith V. Smith; Gaddy V. (Cont'd. on p. 1424 Advisers) (Cont'd. on p. 1424 Evidence) Gaddy and McFadden V. McFadden 1421 Superior Court of the District of Columbia 24 HR. SERVICE understanding than is given in the court's opin- Position Vacancy Announcement ion of why the precedents on which it relies are RAISED LETTER PRINTING distinguishable here and thus deemed not per- Family Division 500 Indiana Avenue, N.W. Announcements suasive or binding. I conclude, as does the ma- jority, that the evidence is insufficient in these Hours of Duty: 8:30-5:00 p.m. Business Cards unique circumstances. See Jackson v. Virginia, Announcement No.: 06-85-111 Letterheads 443 U.S. 307 (1979). Resumes The government's burden, when it relies on POSITION TITLE, SERIES, GRADE & SALARY fingerprint evidence, is to negate at least the Chief Deputy Clerk EXPRESS PRESS, INC. most reasonable explanations of that evidence CS-945-15 which are consistent with innocence, and to show $51,060-$63,800 AMA Bldg Cnr Vermont & L Sts that the fingerprints were made during the com- (1 Vacancy) (next to Nautilus) mission of the crime. In re M.M.J., 341 A.2d 421 AREA OF CONSIDERATION 898-1812 (D.C. 1975). In M.M.J., the print was found on a Court-wide & Outside transom over an inside door, an area generally inaccessible to the public and to the appellant in DUTIES IN BRIEF: Responsible for over all planning, direction and management of EVIDENCE that case; the government introduced evidence the Family Division. tending to show lack of access in fact by ap- (Cont'd. from p. 1421) pellant. Id. at 423. In Hawkins v. United States, Develops and implements policies and programs designed to 329 A.2d 781 (D.C. 1974), Hawkins' fingerprints enhance the accomplishment of the mission assigned to the determinate period of time if not removed, and Family Division. Responsible for the development, evaluation thus, he could not determine when Rhyne's print were found on the front of a ransacked dresser, and research of special projects assigned to the Family Division was made on the dust cover. located in the robbery victim's bedroom. by the Clerk of the Court. Rhyne contends that these facts are basically Although Hawkins may have visited her home on indistinguishable from those found insufficient one occasion, two months before the robbery, Confers with and recommends to management proposed rules and legislation affecting family law procedures, and related mat- to sustain convictions in Townsley v. United the victim's testimony precluded any reasonable ters. States, 236 A.2d 63 (D.C. 1967), and Hiet v. possibility that he would have touched the Serves as principal legal liaison on all Court Family Division mat- United States, 124 U.S.App.D.C. 313, 365 F.2d dresser where the print was found. Id. at 782. 504 (1966). On the other hand, the government Finally, in Patten v. United States, 284 A.2d 182 ters. contends these facts more closely approximate (D.C. 1968), Patten's fingerprints were on a QUALIFICATIONS: those found sufficient to sustain the convictions paper bag which contained burglary tools and Candidates must have a law degree from an accredited college or university and preferably membership in the District of Co- in such cases as In re M.M.J., 341 A.2d 421 (D.C. which was found beside a broken skylight over a lumbia Bar, plus five (5) years of legal and administrative ex- 1975); Hawkins v. United States, 329 A.2d 781 store, in an area generally inaccessible to ap- perience. Experience must include supervisory skills of a signifi- (D.C. 1974), and Patten v. United States, 248 pellant or to any member of the public. Id. at cant nature, which demonstrates that the candidate was involv- A.2d 182 (D.C. 1968). 183. ed at a high level with the managerial structure. While we recognize that the analysis of Here, Rhyne did have access, with permission, evidence found to be legally sufficient or insuffi- to the room where the stereo equipment was HOW TO APPLY: COURT EMPLOYEES may apply using the D.C. Court Promo- cient to sustain convictions in prior cases may kept, if not to the specific area of the equipment. tional Application. Copies of the application may be obtained in often be helpful in deciding a pending case, we The evidence presented does not rule out an in- the Personnel Office Room 319, Building "A" between the also recognize that adjudication of this type of nocent, although unauthorized, touching of the hours of 8:30 a.m. and 5:00 p.m. Monday through Friday. issue cannot be done by looking for the proper dustcover-particularly since we cannot be cer- pigeonhole. Rather, the evidence in each case tain where the dustcover, which appears to have COURT APPLICANT MUST HAVE BEEN IN HIS/HER PRESENT POSITION FOR SIX (6) MONTHS BEFORE HIS/HER APPLICA- must be weighed for sufficiency. Here, there was been totally removable, may have been in rela- TION WILL BE CONSIDERED FOR PROMOTIONAL OPPORTUNI- no testimony or other evidence that the entry tion to the stolen items at the time of the TY. was not forced. Without such testimony, or other burglary in an active household in which the OUTSIDE CANDIDATES-Submit a Court Employment Applica- evidence (as distinguished from the lack thereof) stereo equipment was regularly used. tion to the Personnel Office, Superior Court of the District of Co- from which the jury could reasonably conclude I also respectfully disagree with the statement lumbia, 515 5th Street, N.W., Room 319, Washington, D.C. that the entry was not forced, we do not believe in the court's opinion that because there was no 20001 between the hours of 8:30 a.m. and 5:00 p.m. Monday that a reasonable jury, acting reasonably, could testimony or other evidence that the entry was through Friday. Applications may be obtained in the Personnel find appellant's fingerprint to be sufficiently in- not forced, there was no evidence from which the Office. criminating to find him guilty. jury could reasonably conclude that the entry Candidates who applied under announcement #08-84-120-0 Reversed and remanded with instructions was not forced. I believe a legitimate inference need not reapply, unless they want to update their application. that entry into the house was not forced may be to enter a judgment of acquittal. drawn from the owner's and the maid's "An Equal Opportunity Employer-All Qualified Candidates will testimony regarding the circumstances of the Receive Consideration Without Regard to Race, Color, Religion, NEBEKER, J., concurring in the result: I discovery of the theft: the house was left SO un- National Origin, Age, Sex, or Physical Handicap." believe that the government is entitled to a fuller disturbed that the family did not realize a burglary had taken place until they noticed the There May Be A Better Way To Resolve Your stereo was missing. Here, the inference is bolstered by the fact that nothing in the house Dispute Than Filing Suit In Court other than the stereo equipment was removed in the August burglary. The circumstances tend to rule out a burglar who needed to enter by force, If you are involved in a Small Claims case or dispute not knowing another way in, and not knowing the location of a targeted valuable and relatively If you are involved in a dispute over the non-payment of a debt, portable item. damaged merchandise, a minor automobile accident, damage to personal belongings, or any other Civil dispute involving $2,000 or less, you may ADVISERS not have to take Court action to get relief. Come to the D.C. Superior (Cont'd. from p. 1421) Court's new Intake Center in Room C-500 of the D.C. Courthouse, 500 Rep. No. 1380, 93d Cong., 2d Sess. 14-15 (1974); see also S. Rep. No. 1200, 93d Cong., 2d Sess. 15 Indiana Avenue, N.W., weekdays from 9:00 a.m.-4:00 p.m. Trained (1974) (identical language). Thus, the Conference staff will help you set up a mediation session at no cost to you or the Report speaks to the precise issue of the mean- other party. ing of the phrase "Executive Office of the Presi- dent" and specifically states an intent to follow If you are involved in other types of disputes the result in Soucie, namely determining whether the sole function of the entity within the If you are involved in any other type of dispute, the Intake Center can Executive Office is to advise and assist the Presi- dent. Where, as here, the specific mention of the also be of assistance. Staff will help you determine whether there is an CEA in the House Report was dropped and a alternative to litigation that will work for you and, if so, will refer you to specific, judicially formulated test was adopted by the Conference Committee for determining the program best able to help. the FOIA status of such entities, the House Report is entitled to little weight in this respect. Manifestly, the Conference elected to embrace a ministration of the Council was centralized in the band's statements are often even more acute.2 test to be substituted for a listing of the entities chairman. See Reorganization Plan No. 9 of Domestic relations cases are not the only ones to be included; the outcome of the case before us 1953, 18 Fed.Reg. 4543, 67 Stat. 644 (1953). in which people lie. Criminal defendants do SO should, accordingly, turn on an examination of However, it is not clear that the plan negated with remarkable frequency, especially in drug Soucie and the sole-function test enunciated in any collegiality that might otherwise be cases,³ and there are unfortunately occasions that case. reflected by the statute. The increased respon- when policemen have embellished the truth, or sibility enunciated in the 1953 Reorganization worse. The nature and frequency of perjury and Our task then, is to apply Soucie's sole- Plan spoke primarily to management of the like conduct which the Court has encountered in function test to the role of CEA. Doing SO leads Council's staff. The duty to report to the Presi- its current assignment to Family Motions is ineluctably to the conclusion that its sole func- dent was also vested in the chairman, rather more extreme than in other assignments and tion is to advise and assist the President. Each than the Council. Appellant argues from all this altogether intolerable. Not every disingenuous one of the CEA's enumerated statutory duties is that the fact that the chairman is to report on the financial statement can be referred for possible directed at providing such advice and assistance activities of the Council indicates that the prosecution, but the Court has concluded that to the President. While appellant emphasizes entity's action is joint and collegial. We are four recent cases which appear to it to be that in each instance the language "to the Presi- unpersuaded. Any head of a multi-member enti- especially flagrant should be brought to the at- dent" appears as part of a conjunction, that fact ty could, of course, be instructed to report on the tention of the United States Attorney for any ac- does not affect the conclusion fairly to be drawn. activities of his or her agency. Such an instruc- tion that he may deem advisable. For example, the CEA is directed to appraise tion simply does not translate into a requirement that he or she run the agency collegially. II federal programs relative to a particular While there is language in the statute (that A. Nellum V. Nellum statutory policy and make recommendations to the President in that regard. 15 U.S.C. may or may not be weakened by the Reorganiza- On March 6, 1984, following a two-day trial, $1023(c)(3). The duty to appraise is directly con- tion Plan) evoking notions of collegiality, we can Honorable Eugene N. Hamilton of this Court nected to the Council's duty to make recommen- discern no requirement in the statute that the issued a comprehensive decision in this case in dations. CEA has no regulatory power under the CEA must be SO run. Absent such a requirement, which he ordered the distribution of marital statute. It cannot fund projects based on the ap- and given the unrefuted factual averment that property, awarded the wife child support, but praisal, as OST might, nor can it issue regula- the Council is not and has not been run collegia- denied alimony and counsel fees. On May 8, tions for procedures based on the appraisals, as ly, we conclude that the CEA is not a collegial 1985, the matter came before the undersigned CEQ might. group subject to the Sunshine Act. on the wife's motion for relief from judgment. We can discern no basis in the statute for con- The wife alleged that the husband had secured cluding that CEA has any function save that of The judgment of the District Court as to both an unfair decision by grossly misrepresenting his advising and assisting the President. Nor has the FOIA and Sunshine Act claims is, for the financial situation under oath. This Court found any evidence been brought forward to show that foregoing reasons, that this is exactly what occurred. some other function in fact exists. The various Affirmed. The husband is the president of a consulting acts of CEA members, as enumerated by ap- business named A.L. Nellum & Associates Inc. pellant, do not evidence any independent PERJURY (hereinafter ALNAI) and owns most or all of authority or power; in consequence, we agree ALNAI's stock. 5 His most recent financial state- with Judge Oberdorfer's conclusion that CEA (Cont'd. from p. 1421) ment, filed in connection with certain post-trial should not be considered an agency for purposes years. The wife now remembers that her father motions, reflected that his take home pay for the of the FOIA. lent her an additional $200, but she is otherwise period from January 13, 1984 to November 14, III unable to come up with an explanation for the 1984 was $52,389.50. His bank statements for discrepancy. Her case would surely collapse at the same period, however, disclosed that he had Inasmuch as the Council of Economic Advisers this point, but the inconsistencies in the hus- made deposits of $82,950.51. Proceeding to m- is not an agency for FOIA purposes, it follows of vestigate this apparent discrepancy, the wife's necessity that the CEA is, under the terms of the DON'T JUST TALK counsel elicited testimony from ALNAI's ac- Sunshine Act, not subject to that statute either. countant to the effect that the husband had ob- The reason is that the Sunshine Act expressly in- ABOUT DAMAGE. tained from the corporaton during the years corporates the FOIA definition of agency. See 5 1982, 1983 and 1984, in addition to his salary U.S.C. 5552b(a)(1) ("the term 'agency' means and certain travel advances, a total of $113,000 any agency as defined in section 552(e) in purported loans. Furthermore, even if CEA were an agency These loans were of a remarkably curious within the meaning of FOIA, the Council would character. The husband testified, in response to still not fall within the scope of the Sunshine Act. questioning from counsel and the Court, that the The pertinent definition, set forth in section transactions were negotiated between himself 552b, continues as follows: An agency for pur- and ALNAI, and he acknowledged that he also poses of section 552b is one "headed by a col- represented the company in these negotiations.⁶ legial body composed of two or more individual The terms of the purported loans were extraor- members, a majority of whom are appointed to such positions by the President with the advice dinarily favorable to the husband. He executed and consent of the Senate Id. The District no promissory note, pledged no collateral, and Court held that CEA is not a collegial body. If was not required to repay ALNAI at any that conclusion is correct, CEA is not subject to 2. Counsel for one wife advised the Court that judges in effect the Act. First, the District Court determined, based on SHOW IT! compel litigants to overstate expenses in this way because they will not award enough support unless a sufficient loss is shown. the declaration of then-CEA Chairman Martin The Court observed that even if judges were as lacking in In the courtroom. a picture may be fairness as counsel claimed, this would hardly warrant the sub- Feldstein, that the CEA does not in fact operate mission of false documents under oath. collegially. That declaration is unrebutted; worth much more than a thousand 3. The Court routinely asks drug defendants at sentencing, hence, to the extent that the question is one of words. after first warning them not to lie to the Court, when they last fact, the Feldstein declaration would be fully Photographs can show the scene of used unlawful drugs. With disheartening frequency, they say adequate to support the court's grant of sum- they have not used drugs since their arrest. The Court then sug- mary judgment in favor of the Council. an event and the materials involved gests deferring the sentencing to allow them to go to the Pretrial Services Agency for a drug test, and ask the defendant what the However, if the CEA is legally constituted as a as well as the extent of damage. de- test will show. After considerable hemming and hawing, the collegial body, its actual mode of operation might formation and other factors. defendants usually acknowledge smoking a few "joints," often weigh less heavily in our analysis. laced with some "lovely" (PCP), a few days earlier. The Court By its terms, the organic statute creating the Call Shinder & Associates to witness considers their original lack of candor when imposing sentence. CEA appears to envision a collegial group. After the real difference photographs can 4. Fortunately, the Court has not encountered anything like all, the statute creates a "Council" of advisers. the case in Milwaukee, Wisconsin in which the police, hunting The Council consists of three members confirm- make. PHONE 573-2222. what they called "niggers" to stop for traffic offenses in order to pad their arrest statistics, shot a young black man dead and then ed by the Senate, with one member later being placed a large pocket knife in his hand in order to make it appear designated by the President as chairman. This Shinder that he was armed. See Bell V. City of Milwaukee, 746 '.2d 1205 structure might reasonably be construed to sug- (7th Cir. 1984). gest roughly co-equal status among the three Associates 5. At the time of trial, Judge Hamilton found that the husband members. The statute also speaks of various ac- owned 87% of the stock. tivities of the "Council" and does little or 3550 Marvin Street 6. Judge Hamilton found that the wife had at one time been an nothing to separate out the chairman. officer of the company but resigned because she was not given in- The CEA was reorganized in 1953, and ad- Annandale, Virginia 22003 formation about the business or brought into the decision making and did not wish to be a rubber stamp. ID # 357847 cu JV WHITE HOUSE F4010-01 CORRESPONDENCE TRACKING WORKSHEET 0 OUTGOING H INTERNAL I INCOMING Date Correspondence Received (YY/MM/DD) / / RAH Name of Correspondent: Thomas Houser MI Mall Report User Codes: (A) (B) (C) Subject: FOIA request for himult ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD Watall ORIGINATOR 85,10124 / Referral Note: cut 04 R& 85110125 G 585,11,05 Referral Note / i / / Referral Note: / / / / - Referral Note: / / *** / Referral Note: ACTION CODES DISPOSITION CODES A Appropriate Action I n into Copy Only/No Action Necessary A Answered C Completed C Comment/Recommendation R Direct Reply w/Copy B B Non-Special Referral $ Suspended D Draft Response S For Signature F Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE Type of Response = Initials of Signer Code * "A" Completion Date : Date of Outgoing Comments: Susan nellor Keep this worksheet attached to the original incoming letter. Send all routing updates 10 Central Reference (Room 75, DEOB). Always return completed correspondence record to Central Files, Refer questions about the correspo idence tracking system to Central Reference. ext. 2590. 5/81 THE WHITE HOUSE WASHINGTON October 28, 1985 MEMORANDUM FOR SUSAN NELLOR DIRECTOR, OFFICE OF LEGAL SERVICES EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS U.S. DEPARTMENT OF JUSTICE FROM: ASSOCIATE COUNSEL 022 TO THE PRESIDENT JOHN G. ROBERTS SUBJECT: FOIA Referral This is in response to your memorandum of October 23 to Counsel to the President Fred F, Fielding, concerning the FOIA request of Thomas C. Hauser. Your memorandum referred White House correspondence responsive to the request to this office for direct reply to the requester. The White House Office is not subject to the Freedom of Information Act. For this and other reasons, we do not respond directly to those filing FOIA requests, other than to advise them of the inapplicability of the Act to certain offices in the White House. The usual procedure 10 the case of White House documents found at other agencies that are responsive to FOIA requests filed at those agencies IS for those agencies to refer the documents to us Tafter processing for possible exemption), to determine if we have any objection to the agency releasing them to the requester. In this case, we have no objection to your releasing the White House document.