Ask the Scholar

Page 1 of 1

I can add historical knowledge about this page.

Page image

OCR

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/White House Files
Box: 57
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/
file: white House files
LLS: CS:mlc
CC: files
Sudol
Simms
Sunstein
Retrieval
2 2 DEC 1300
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Presidential control over documents sent
to or from White House but kept in agency
or department files
You have requested the views of this Office with
respect to the President's power to control access to documents
sent to or from the White House, copies of which are currently
kept in the files of a Federal agency or department. In
particular, your question involves documents whose originals
may be found in the White House but copies of which have been
filed with the agency to or from which the documents were
sent. For the reasons stated below, we believe that a
President has no statutory or constitutional power to control
access to or dissemination of documents that are required by
law to be retained in the files of federal agencies.
A comparatively recent statement by the Attorney
General on the subject of presidential control over papers
generated in the White House contains an extensive discussion
of the governing law prior to the passage of the Presidential
Records Act of 1978, Pub. L. No. 95-951, 92 Stat. 2523, 44 U.S.C.
55 2201-2207. (That Act is not applicable in this context
because it is not effective until January 20, 1981. See
Pub. L. No. 95-591, S 3.) In 43 Op. A.G. 1 (1974), Attorney
General Saxbe concluded that "papers and other historical
materials retained by the White House" were, by virtue of
an established historical practice acknowledged by all three
Branches of government, the personal property of the President.
According to the Attorney General, every President has reached
this conclusion with respect to "all the papers and historical
materials which accumulated in the White House during his
administration." Id. at 2. Such documents would "not become
the property or a record of the government unless [they] go[ ]
on to the official files of the department to which [they] may
be addressed." Id., quoting Taft, The Presidency 30-31 (1916).
This conclusion was buttressed by similar views
expressed on various occasions by Congress, see, e.g.,
Pub. L. No. 90-260, 82 Stat. 1288 (Administrator of General
Services may accept for deposit all papers of President or
former President); 101 Cong. Rec. 9935 (1955) (remarks of
Rep. Moss) ("Presidential papers belong to the President");
H.R. Rep. No. 966, 93d Cong., 2d Sess. 28-29 (1974). Indeed,
the same position was articulated in the House Report
accompanying the Presidential Records Act of 1978. See H.R.
Rep. No. 1487, 95th Cong., 2d Sess. 2, 5-7 (1978). Although
the Supreme Court has not addressed the matter, see Nixon V.
Administrator of General Services, 433 U.S. 425, 445 n.8
(1977), Mr. Justice Story, acting as Circuit Judge, concluded
over one hundred years ago that President Washington's official
correspondence was his private property. See Folsom V. Marsh,
9 F. Cas. 324 (No. 4901), 2 Story, 100, 198-109 (C.C.D. Mass.
1841).
No comparable historical practice supports the proposition
that the President is authorized to control access to documents
which are not in the custody or control of the White House.
Attorney General Saxbe's conclusion was expressly restricted
to materials "retained by the White House." President Taft's
views, which the Attorney General quoted with approval, plainly
suggested that the President's correspondence becomes "the
property or a record of the government" when "it goes on to
the official files of the department to which it may be
addressed." To our knowledge, no judge or member of Congress
has expressed the view that the President has rights of owner-
ship in documents not in the custody or control of the White
House. We do not believe this conclusion is altered by the
fact that either the original or a copy of the document remains
in the custody of the President. To be sure, that original
or copy is subject to the President's control. But no statute
or historical practice suggests that documents that are kept
in another agency's official files are nonetheless within
presidential control.
This conclusion is compelled by the provisions of the
Records Disposal Act, 44 U.S.C. 3301 et seq. That Act
places careful controls on the removal or disposal of agency
records. The term "records" is defined as including
[A] 11 books, papers
or
other documentary materials
made or received by an agency of the
United States Government under Federal
law or in connection with the transac-
- 2 -
tion of public business and preserved
or appropriate for preservation by that
agency or by its legitimate successor as
evidence of the organization, functions,
policies, decisions, procedures, opera-
tions, or other activities of the
Government or because of the informational
value or data in them.
44 U.S.C. § 3301. Documents sent to or from the President and
retained in agency files are undoubtedly "records" within the
meaning of this provision. Such documents may not be disposed
of except in accordance with the provisions of the Records
Disposal Act. In the absence of an express or implied statutory
exclusion or an applicable constitutional provision, we do
not believe that it would be proper to infer an exemption
for documents sent to or from the White House. We therefore
conclude that access to such documents may not be controlled
or restricted by the President. /
Sincerely,
Larry L. Simms
Acting Asssistant Attorney General
Office of Legal Counsel
* / For the same reasons, we do not believe that a member of
the Cabinet is permitted to assure the President that he will
restrict access to documents sent to or from the White House
but retained in agency files. Under the federal records
statutes, a Cabinet member has no general authority to remove
documents filed in the agency or department which he leads.
If the relevant agency's regulations so provide, however, he
may be permitted to remove documents found by the agency to
be not "appropriate for preservation," such as working drafts
or papers whose substance is adequately reflected in other
documents filed with the agency. See Brief for the Federal
Parties, Kissinger V. Reporters Committee for Freedom of the
Press, 445 U.S. 136 (1980). With respect to documents not
"appropriate for preservation,' the President may enter into
a contractual relationship with Cabinet officials without
offense to the federal records statutes. The enforceability
of any such agreement would depend on general principles of
contract law.
- 3 -
RYAN V. DEPARTMENT OF JUSTICE
781
Cite as 617 F.2d 781 (1980)
NEPA, which would otherwise limit FERC
gressional intent by allowing delay to result
action, have already been removed from our
from a complaint that goes only to the
consideration. In order to accept jurisdic-
reasonableness and record support of FERC
tion and step in to overturn this action of
decisions. In this case complainants have
the Commission, we would have to ignore
not pointed to any Commission action or
the ANGTA in precisely the type of situa-
omission of the type Congress intended us
tion where it most compellingly applies.
to review. The complaint is therefore
This would produce exactly the result that
Dismissed.
Congress tried to prevent.
For instance, to require a separate EIS
for the pipeline pressure issue would delay
KEY NUMBER SYSTEM
eventual construction by months and per-
haps years. The interrelationship between
issues, which is the foundation of complain-
ants' argument, could make the delay even
longer. Decisions on various design fea-
tures of the pipeline must be made sequen-
Tom W. RYAN, Jr., Missouri Public In-
tially; e. g., final design of the pipeline
terest Research Group, Appellants,
must await approval of operating pressure,
V.
and financing arrangements are influenced
DEPARTMENT OF JUSTICE.
by design specifics and their cost. Thus a
delay in deciding on pipeline pressure can
Charles R. HALPERN, Judicial Selection
have ripple effects that upset planning cer-
Project, Dorothy J. Samuels, Committee
tainty for financing purposes.2
for Public Justice, Appellants,
Such concerns underlie the Commission's
V.
decision to proceed with separate issues and
DEPARTMENT OF JUSTICE.
Congress's decision to shield the decision-
making process from judicial review when
Nos. 79-1777, 79-1778.
constitutionally permissible. Even with the
United States Court of Appeals,
ANGTA provision to expedite pipeline con-
District of Columbia Circuit.
struction, it has already taken the Commis-
sion two years since the President's decision
Argued 22 Oct. 1979.
just to approve a pressure level for the
Decided 7 Jan. 1980.
pipeline. Final certificates and commence-
ment of construction are still further in the
As Amended on Denial of Rehearing
future. In this light, if there is any short-
Feb. 25, 1980.
coming in the Commission proceedings, it is
certainly not in a lack of deliberation or in
Suit was instituted to obtain disclosure
denial of time and opportunity for interest-
of documents under the Freedom of Infor-
ed parties to express their views.
mation Act. The United States District
Of course the questions before us in this
Court for the District of Columbia, Parker,
case are quite narrow. But these broader
J., 474 F.Supp. 735, entered order granting
considerations of congressional intent to ex-
summary judgment to defendant, and
pedite do drive home the importance of
plaintiffs appealed. The Court of Appeals,
taking ANGTA's judicial review provisions
Wilkey, Circuit Judge, held that: (1) docu-
seriously. We may not strain for a statuto-
ments in form of responses made by various
ry interpretation that will circumvent, con-
senators to a questionnaire sent by the At-
29. An increase in the approved pressure level
studies and burst testing necessary to ensure
can cause even greater delay. The Canadian
the reliability of such new technology could
National Energy Board rejected pressure levels
delay the project by up to two years. See Joint
above 1260 psig partly because the engineering
Appendix at 87.
782
617 FEDERAL REPORTER, 2d SERIES
torney General inquiring about procedures
former was not an "agency" because he
7. Reco
employed by state nominating commissions
functioned in a purely advisory capacity to
Wh
for selecting and recommending persons to
the President. 5 U.S.C.A. § 552.
outside
the President for appointment to new fed-
See publication Words and Phrases
process,
eral district court judgeships were "agency
definitions. for other judicial constructions and
records" for purposes of the Freedom of
entirely ment to
Information Act where, aside from fact
3. Federal Courts
617
for purp
that documents were within exclusive con-
Though Court of Appeals did not nor-
statutor
trol of the Attorney General, there was no
mally give consideration to issues that were
(5).
basis for distinguishing between the Attor-
neither raised nor decided below, where
ney General and the Department of Justice
sue with respect to applicability of an
8. Reco
in such a way that the former was not an
Stat
emption under the Freedom of Information
"agency" because he functioned in a purely
Act was raised and briefed in summary
tra-ager
advisory capacity to the President, and (2)
judgment motions before the district court
would n
documents were exempt from disclosure un-
there was no doubt as to proper resolution
other tl
der Act as "inter-agency or intra-agency
of case, and delay by extensive further pro-
agency
memorandums or letters" except for factual
which will
ceedings in district court could render plain
segments which did not reveal deliberative
tiffs' efforts futile, it was fully appropriate
in civil 1
process and were not intertwined with poli-
for Court of Appeals to proceed to exemp-
C.A. § 5
cy-making process.
tion issue. 5 U.S.C.A. § 552(b)(5).
9. Reco
Vacated and remanded.
4. Records 57
Sta
il litiga
Exemption accorded in Freedom of In-
1. Records
53
formation Act to "inter-agency or intra->
preted b
Standard for determining whether a
agency memorandums or letters" which
purely f
from th
document is an agency record, namely,
would not be available by law to a party
ment, ai
whether under all facts of case document
other than an agency in litigation with
confider
has passed from control of Congress and
agency was created to protect deliberative
must be
become property subject to free disposition
process of government by ensuring that
of agency with which document resides, re-
persons in an advisory role would be able to
10. Rec
quires court to look at circumstances under
express their opinions freely to agency dect-
Fac
which document was generated, whether it
sion makers without fear of publicity.
disclosur
was generated by a nonagency, and how,
U.S.C.A. § 552(b)(5).
manner
and why, and to look at nonagency's intent
facts we
5. Records
55
in transferring document to agency. 5 U.S.
facts ar
A narrow interpretation must be given
C.A. § 552.
policy-m
to an exemption in Freedom of Information
§ 552(b)
2. Records
54
Act. 5 U.S.C.A. § 552(b)(5).
Documents in form of responses made
11. Rec
6. Records
57
by various senators to a questionnaire sent
Pro
by the Attorney General inquiring about
In enacting statute affording an ex-
agency
emption to "inter-agency or intra-agencye
procedures employed by state nominating
would n
memorandums or letters" which would not
commissions for selecting and recommend-
other tl
ing persons to the President for appoint-
be available by law to a party other than an
agency
agency in litigation with agency, Congrest
ment to new federal district court judge-
agencies
apparently did not intend "inter-agency
ships were "agency records" for purposes of
and fina
and "intra-agency" to be rigidly exclusive
the Freedom of Information Act where,
or which
terms, but rather, to include any agency
aside from fact that documents were within
ready ta
exclusive control of the Attorney General,
document that is part of deliberative proo-
tions be
there was no basis for distinguishing be-
ess. 5 U.S.C.A. § 552(b)(5).
commun
See publication Words and Phrases
tween the Attorney General and the De-
for other judicial constructions and
ment ar
partment of Justice in such a way that the
definitions.
leged. :
RYAN V. DEPARTMENT OF JUSTICE
783
Cite as 617 F.2d 781 (1980)
cy" because he
7. Records
57
12. Records
54
sory capacity to
When an agency record is submitted by
$ 552.
That an individual senator may have
outside consultants as part of deliberative
taken final action by deciding which indi-
and Phrases
process, and it was solicited by agency, it is
ructions and
viduals he would recommend to the Presi-
entirely reasonable to deem resulting docu-
dent for appointment to the new federal
ment to be an "intra-agency" memorandum
district court judgeships was not material
for purposes of determining applicability of
to whether the documents in form of re-
als did not nor-
statutory exemption. 5 U.S.C.A. § 552(b)
sponses to a questionnaire from the Attor-
issues that were
(5).
ney General constituted the final opinion or
xlow, where is-
& Records
57
action of an agency. 5 U.S.C.A. § 552(b)(5).
bility of an ex-
of Information
Statute exempting "inter-agency or in-
13. Records
54
in summary
tra-agency memorandums or letters" which
Finality could not justify disclosure of
district court,
would not be available by law to a party
documents in form of responses made by
roper resolution
other than an agency in litigation with
various senators to a questionnaire from the
further pro-
agency protects only those memoranda
Attorney General respecting procedures
render plain-
which would not normally be discoverable
adopted by state nominating commissions
appropriate
in civil litigation against an agency. 5 U.S.
for selecting and recommending persons to
to exemp-
C.A. § 552(b)(5).
the President for appointment to federal
(b)(5).
1. Records
54
district court judgeships. 5 U.S.C.A.
Standard of what is discoverable in civ-
§ 552(b)(5).
Freedom of In-
il litigation against any agency, as inter-
14. Records
57
intra-
preted by the Supreme Court, indicates that
or
Responses by various senators to a
letters" which
purely factual material which is severable
questionnaire from the Attorney General
to a party
from the policy advice contained in a docu-
respecting procedures adopted by state
litigation with
ment, and which would not compromise the
nominating commissions for selecting and
deliberative
E confidential remainder of the document,
recommending persons to the President for
ensuring that
must be disclosed. 5 U.S.C.A. § 552(b)(5).
appointment to new federal district court
ould be able to
10, Records
53
judgeships were exempt from disclosure un-
agency deci-
Factual segments are protected from
der Freedom of Information Act as "inter-
publicity.
5
disclosure as not being purely factual if
agency or intra-agency memorandums or
manner of selecting or presenting those
letters" except for factual segments which
facts would reveal deliberate process or if
did not reveal deliberative process and were
facts are "inextricably intertwined" with
not intertwined with policy-making process.
be given
Information
policy-making
process.
5
U.S.C.A.
5 U.S.C.A. § 552(b)(6).
$
552(b)(5).
15. Federal Courts
612
11. Records
57
Government was precluded from rais-
er-
Provision for "inter-agency or intra-
ing issue whether questioned documents
an
intra-agency
agency memorandums or letters" which
were exempt from disclosure as "personnel
would
not
would not be available by law to a party
and medical files and similar files" where
other
than
an
other than an agency in litigation with
government failed to raise that issue in
Congress
agency does not apply to final actions of
original proceeding before district court. 5
inter-agency"
agencies, in sense of statements of policy
U.S.C.A. § 552(b)(6).
exclusive
and final opinions which have force of law
16. Records
66
any
agency
x which explain actions an agency has al-
erative
ready taken, but applies only to communica-
Once the district court orders the
proc-
tions before adoption of an agency policy;
government to disclose all purely factual
Phrases
communications that promulgate or imple-
material in the questioned documents and
and
ment an established policy are not privi-
to identify those advisory segments protect-
eged. 5 U.S.C.A. § 552(b)(5).
ed by the statutory exemption, it may then
be necessary for the district court to inspect
784
617 FEDERAL REPORTER, 2d SERIES
documents in camera to decide if individual
ommendations from others, evaluate selec-
segments properly fall within the exemp-
tion processes, and recommend persons
an
tion. 5 U.S.C.A. § 552(b)(6).
the President for appointment. Included
not
this task is the obligation to consid
FO
whether an affirmative effort has been
con
Appeal from the United States District
Court for the District of Columbia. (D.C.
made to identify qualified candidates,
by
Civil Nos. 79-1042 & 79-1043)
cluding women and members of minority
me
groups. In November 1978 the Attorney
ecu
Girardeau A. Spann, Washington, D. C.,
General sent to all Senators a questionnaire
ad
with whom Alan B. Morrison and David C.
inquiring about their procedures for select.
cas
Vladeck, Washington, D. C., were on brief,
ing and recommending potential nomineea.
det
for appellants.
By June 1979 the Attorney General
Joseph B. Scott, Atty., Dept. of Justice,
received more than fifty responses.
-
Washington, D. C., with whom Carl S.
In early 1979 plaintiffs sought FOIA
Rauh, U. S. Atty. and Leonard Schaitman,
closure of questionnaire responses from the
-
Atty., Dept. of Justice, Washington, D. C.,
Department of Justice, as part of an effort
ph
were on brief, for appellee.
to monitor federal judicial appointments
suf
and their inclusion of women, racial minori
wh
Before McGOWAN and WILKEY, Cir-
ties, and "public interest" lawyers. The
sin
cuit Judges, and GESELL* United States
Department of Justice denied disclosure
ag
District Judge for the District of Columbia.
claiming that the responses were not agen-
FC
Opinion for the Court filed by WILKEY,
cy records within the scope of the FOIA
to
Circuit Judge.
and were exempt under FOIA Exemption s
a
as pre-decisional advisory material.
co
WILKEY, Circuit Judge:
Plaintiffs filed suit in United States Dis
th
This case is an appeal from a district
trict Court to compel disclosure. On 11
th
court order granting summary judgment to
July 1979 the district court, ruling on cross-
wl
the Government in a Freedom of Informa-
motions for summary judgment, granted.
ag
tion Act (FOIA) suit, on grounds that the
judgment for the Government. The district
main
requested documents were not "agency rec-
court held the documents not to be agency
su
ords" for FOIA purposes. We find on the
records, and thus found it unnecessary to
ag
basis of the undisputed facts that the docu-
rule on the Exemption 5 issue, which had
gr
ments are agency records; we therefore
been briefed and argued. The court also
reverse with instructions to enter summary
conducted in camera inspection of five ran-
judgment for plaintiffs on this issue. We
domly selected questionnaire responses.
co
also consider the applicability of FOIA Ex-
Plaintiffs appealed to this court, and we
en
emption 5 to these documents, and remand
have taken expedited action to resolve the
of
for the district court to determine the ex-
case before the President's completion of
io
tent to which that exemption bars disclo-
the judicial selection process renders plain-
cj
sure.
tiffs' action futile.
2.
I. FACTS
3.
In order to guide the selection of new
II. THE AGENCY RECORDS ISSUE
federal district court judges, President Car-
In several prior FOIA cases courts have
ter issued "merit selection" guidelines in
been called upon to determine whether re-
4.
Executive Order 12097.1 This Order
quested documents are "agency records."
charges the Attorney General with the duty
This issue commonly arises when the re-
to evaluate potential nominees, receive rec-
quested documents are in the possession of
5.
* Sitting by designation pursuant to 28 U.S.C.
1. 3 C.F.R. $ 254 (1978).
§ 292(a) (1976).
RYAN V. DEPARTMENT OF JUSTICE
785
Cite as 617 F.2d 781 (1980)
aluate
selec-
an agency but were created by an entity
FOIA request for a congressional document
I persons to
not defined as an "agency" under the
that was in the hands of an agency. We
Included in
FOIA: Congress, federal courts, outside
adopted a standard of control rather than
to
consider
consultants not in corporations controlled
possession: "whether under all the facts of
t has been
by the government,2 or the President's im-
the case the document has passed from the
adidates,
in-
mediate personal staff and units in the Ex-
of
control of Congress and become property
minority
ecutive Office whose sole function is to
he
subject to the free disposition of the agency
Attorney
advise and assist the President.³ For such
with which the document resides." Under
uestionnaire
for
cases the FOIA does not specify a test for
the Goland standard, the court looks at the
select-
nominees.
determining what is an agency record.4
circumstances under which the document
General
had
was generated-whether it was generated
A. Standard as to What Is an Agency
by a non-agency, and how, and why-and at
dis-
Record
the non-agency's intent in transferring the
FOIA
document to the agency. In Goland, Con-
from
the
The straightforward question of who has
gress's actions generating the document
of
an
effort
physical possession of documents has not
during an executive session of a committee,
opointments
sufficed, in cases before this court, to define
marking the document "Secret," and trans-
minori-
whether documents are agency records.5 A
ferring it to the CIA solely for internal
The
timple possession standard would permit
disclosure,
reference purposes, showed that Congress
agencies to insulate their activities from
intended to refrain effective control while
not
agen-
FOIA disclosure by farming out operations
the
FOIA
the document was in agency hands.'
to outside contractors. It would also create
xemption
5
a severe problem whenever confidential
Goland follows the structure and intent
congressional documents or materials from
of the FOIA by determining what entity
States
Dis-
the President's immediate staff come into
controls the document and deciding wheth-
On
11
the possession of an agency, as may occur
er that entity is within the category of
on
cross-
when Congress oversees and supervises an
"agency" defined by the Act. An earlier
granted
agency. A standard that automatically
decision of this court pursued a similar ap-
The
district
made such records subject to FOIA disclo-
proach, inquiring whether the generation of
be
agency
sure as soon as they are transferred to
a document by consultants of the Office of
cessary
to
agency hands would seriously impair Con-
Science and Technology brought it within
which
had
gress's oversight role.
control of that Office so as to make it a
court
also
"record," and whether that Office was an
five
ran-
[1] Recognizing these difficulties, this
"agency" or rather a part of the President's
responses.
court has adopted a standard more consist-
staff.¹⁰ In a more recent case we have
and
we
ent with the intent and general framework
again examined whether an agency con-
esolve
the
of the FOIA disclosure system. Our opin-
trolled the documents of an outside entity,
pletion
of
lon in Goland V. Central Intelligence Agen-
in the sense of being involved in the "core
plain-
ey" examined this issue in the context of a
planning or execution" of a program, such
2 See 5 U.S.C. § 552(e) (1976).
6. See Goland V. Central Intelligence Agency,
z See S.Rep.No.1200, 93d Cong., 2d Sess. 15
607 F.2d at 346.
ISSUE
6267. (1974), U.S.Code Cong. & Admin.News 1974, p.
7. 607 F.2d 339 (D.C. Cir. 1978).
have
ether
re-
h 44 U.S.C. $ 3301 is the only statutory defini-
8. Id. at 346-47. See also Cook V. Willingham,
records."
tion of "record," and it is not applicable to the
400 F.2d 885 (10th Cir. 1968).
the
re-
FOIA. See Goland V. Central Intelligence
of
Agency, 607 F.2d 339, 345 n.30 (D.C. Cir. 1978).
9. See Goland V. Central Intelligence Agency,
607 F.2d at 347.
& The Ninth Circuit has also rejected the pos-
session standard. See Warth V. Department of
10. See Soucie V. David, 145 U.S.App.D.C. 144,
Justice, 1979). 595 F.2d 521, 522-23 & n.7 (9th Cir.
150-53, 448 F.2d 1067, 1073-1076 (D.C. Cir.
1971).
786
617 FEDERAL REPORTER, 2d SERIES
as to make the documents agency records
sensitive, and nothing in the Attorney Gen.
within the FOIA. 11
eral's questionnaire or other circumstances
indicated that Senators would have the pre-
B. Control of the Records in this Case
rogative to maintain secrecy. On this reo
In the present case, although the request-
ord we cannot find control by the Senatora
ed documents were in the possession of the
Nor have the nominating commissions exen.
Department of Justice, the district court
cised any degree of control over the doca!
concluded that the history and purpose of
ments.
their generation showed them not to be
Although the documents are for the ulti-
agency records under the FOIA. The court
mate benefit of the President in a nominat-
found that the documents did not belong to
and were not within the control of either
ing role that is exclusively his, we find that
the Attorney General was acting as an inde-
the Attorney General who possessed them,
the Senators who participated in their gen-
pendently controlling entity, and not a mere
conduit. The questionnaires solicited re-
eration, the state nominating commissions
about which they reported, or the President
sponses from Senators at the request of the
Attorney General, not the President. In his
for whose ultimate benefit they were creat-
cover letter enclosed with the question-
ed. Rather, the court found, the documents
naires, the Attorney General stated the in
were the "collective product and property"
of all of these entities, none of which were
dependent role he was to play in this proc-
ess: he was to consider certain factors be-
agencies for FOIA purposes. The court
fore making his own recommendations to
concluded that the Attorney General was
the President as to judicial nominees. This
not an "agency" in this case because he was
is an independent exercise of judgment that
acting as "counsel and advisor to the Presi-
dent," in furtherance of the President's
the Attorney General has traditionally take3
en in the judicial nomination process. The
power to nominate federal judges.¹²
logical deduction from the facts is that the
[2] We find, on the contrary, that the
Attorney General was to control the ques-
requested documents are in the control of
tionnaire responses for the purpose of
the Attorney General and the Department
carrying out his independent duties. We
of Justice which he heads. The Depart-
have no evidence before us that the Presi-
ment possesses the documents; and while
dent in any way diminished the Attorney
this factor is not conclusive on the crucial
General's control over these documents;
issue of control, it is certainly relevant.
there is no indication that they will ever be
Unless there is evidence of control by some
transmitted to or seen by the President or
other entity, we must conclude that the
his staff. By all indicia of ownership, the
Attorney General and his Department con-
documents are within the exclusive control
trol these documents. We find no such
of the Attorney General.
evidence. Senators generated these materi-
als at the specific request of the Attorney
General, and they gave no indication that
C. The Attorney General as Advisor and
they wished to limit his use of them. There
as Administrator
are no express or reasonably implied senato-
We must next consider whether there is
rial instructions concerning the Attorney
any basis in the FOIA for distinguishing
General's disposition of these documents.
between the Attorney General and the De-
The Senators gave no indication that their
partment of Justice, in such a way that the
responses were to be treated as secret or
former is not an "agency" where he fune-
11. See Forsham V. Califano, 190 U.S.App.D.C.
238, 245-48 (D.C. Cir. 1974), cert. denied, 421
231, 239, 587 F.2d 1128, 1136 n.19 (D.C. Cir.
U.S. 963, 95 S.Ct. 1951. 44 L.Ed.2d 450 (1975).
1978), cert. granted, 441 U.S. 942, 99 S.Ct.
2159, 60 L.Ed.2d 1044 (1979). See also Wash-
12. See Ryan V. Department of Justice, 474
ington Research Project, Inc. V. Department of
F.Supp. 735, 738-39 (D.D.C.1979).
HEW, 164 U.S.App.D.C. 169, 176-78, 504 F.2d
RYAN V. DEPARTMENT OF JUSTICE
787
Cite as 617 F.2d 781 (1980)
Gen-
tions in a purely advisory capacity to the
directly on the Attorney General. 16 What-
nstances
President. Our analysis must start from
ever the formal channels of responsibility,
the
pre-
the FOIA's definition of agency, which in-
the task of receiving, processing, and clear-
this
rec-
cludes "any executive department." 13
ing names of judicial nominees has long
enators.
There is no basis in this definition or its
been a routine function of the Department
exer-
legislative history to view the Attorney
of Justice 17 Whether the official responsi-
docu-
General as distinct from his department for
bility falls directly on the Attorney General,
FOIA purposes. On the contrary, it is only
or rather on one of his subordinates, makes
he
ulti-
reasonable to consider him as much a part
no difference to the fact that this function
ominat-
of the Department of Justice as any other
is regular business of the agency.
that
official or employee in that Department.
Judicial nominations are by no means
inde-
Since the creation of the Department of
unique as an instance where normal agency
mere
Justice in 1870 the Attorney General has
functions involve some element of giving
re-
always had two roles: advisor to the Presi-
advice to the President. The entire Office
of
the
dent and administrator of the Department
of Legal Counsel, under an Assistant Attor-
In
his
of Justice. The same dual role would be
ney General, exists to assist the Attorney
true, to a greater or lesser extent, of all
General in advising the President and Cabi-
he
in-
other Cabinet officers. Whether these doc-
net officers on major legal questions. Thus
proc-
uments are agency records raises the ques-
a substantial number of people, integral
be-
& tion: can any meaningful distinction be
parts of the Department of Justice, are
to
made between documents generated and
there to assist the Attorney General in per-
This
kept in the Department on the basis of the
forming his duty as advisor to the President
that
two different roles? And, if so, would the
on a variety of matters. If we broke out all
tak-
same distinction not apply in all Executive
documents connected with these functions
The
Departments?
as not being "agency records" under the
the
The Government argues that the ques-
FOIA, we would have a substantial percent-
tionnaire responses are not agency records
age of Department of Justice records that
of
because they do not fall out of the sphere of
were somehow transformed into the Attor-
We
the appointment process into Department
ney General's personal records as advisor to
of Justice business.¹⁴ The problem with
the President. This does not appear as
this argument is that the appointment of
either a realistic or intended distinction un-
federal judges has always been a regular
der the Freedom of Information Act.
be
business of the Attorney General and his
This conclusion is underscored if we ex-
or
Department. This responsibility was shift-
amine the likely results if the Government's
the
ed in 1978 to the office of the Associate
theory, adopted by the trial court, were
Attorney General.¹ Shortly before we
applied to other Executive Departments.
heard this case on appeal, it was shifted
For example, in the Department of State a
once again, so that responsibility now falls
huge portion of the Secretary's functions
13. 5 U.S.C. § 552(e) (1976).
tions of an agency. See 145 U.S.App.D.C. at
153. 448 F.2d at 1076. Cf. Forsham V. Califano,
14. Brief for Appellee at 12-19.
190 U.S.App.D.C. 231, 239, 587 F.2d 1128, 1136
is
15. See Dept. of Justice Order No. 790-78, 43
(D.C. Cir. 1978) (FOIA applies only to record
Fed.Reg. 26,001, 26,002 (1978).
created or obtained by agency "in the course of
doing its work"), cert. granted, 441 U.S. 942, 99
16. See Dept. of Justice Order No. 858-79, 44
S.Ct. 2159, 60 L.Ed.2d 1044 (1979). While
Fed.Reg. 58,908 (1979).
there may be exceptional circumstances that
render documents in an agency's possession
17. As a matter of law we are not called upon to
not "records," this case presents no such situa-
decide whether non-routine documents are out-
tion. Cf. SDC Dev. Corp. V. Mathews, 542 F.2d
side the scope of the FOIA. But we note that
1116 (9th Cir. 1976) (agency reference library
our opinion in Soucie V. David did not purport
of medical writings stored in computer bank,
to place any sharp limitation on the category of
and available to public only under a set fee
"records" when it defined them as materials
system, deemed not to be agency records).
made in the performance of the ordinary func-
788
617 FEDERAL REPORTER, 2d SERIES
could be described as advising the President
did not deem the Office to be a non-agency
on the conduct of foreign relations, his se-
in that specific context.
lection of ambassadors, and utilization of
The logical conclusion from the FOIA
those ambassadors abroad. We could hard-
language and from Soucie is that, depend-
ly say all the documents in the Department
ing on its general nature and functions, a
of State relating to the Secretary advising
particular unit is either an agency or it is
the President were not "agency records,"
not. Once a unit is found to be an agency,
although a substantial percentage of these
this determination will not vary according
agency records might well be protected
to its specific function in each individual
from disclosure by one of the FOIA exemp-
case. There is an obvious exception where
tions.
private entities and their documents are
Turning to another argument of the
controlled by agencies in limited circum-
Government to classify the Attorney Gener-
stances; there the private entity certainly
al as a non-agency in this case, the appellee
does not become a government agency ir-
points to the rule that "agency" does not
revocably for all its activities.²² But we can
include the President's immediate personal
see no basis for excepting the Attorney
staff or Executive Office units whose sole
General and the Department of Justice; we
function is to advise the President. This
find they are an agency without respect to
rule was set forth in our opinión in Soucie
their particular functions in individual
V. David,¹ and endorsed by the Conference
cases.
Committee Report on the 1974 FOIA
The Government argues that nomination
Amendments." As expounded in these two
of judges is a purely presidential function;
sources, however, the rule applies only to
that had the President himself solicited this
the initial decision of whether a unit falls
information from Senators, their responses
within the category of "agency" for FOIA
to him would be exempt from the FOIA;
purposes. Neither Soucie V. David, nor the
and that the President's choice to draw the
Committee Report implies that once a unit
Attorney General into this presidential ac-
has been found to be an agency, one of its
tivity should not make the responses dis-
component parts can nevertheless be treat-
closable. Such an approach, defining
ed as a non-agency when engaged in presi-
"agency records" by the purpose for which
dential advisory functions.
they exist, would cut back severely on the
Soucie found that the Office of Science
FOIA's reach as interpreted by courts since
and Technology was an agency, because the
its inception. Documents of the Central
Office had functions in addition to advising
Intelligence Agency and the National Se-
the President. But the opinion did not
curity Agency are compiled precisely for
intimate that the Office might be an agen-
the function of advising the President in
cy only when performing its non-advisory
the solely presidential role of Commander-
functions, and still be a presidential staff
in-Chief. Yet in many FOIA encounters
component, or non-agency, when perform-
with NSA and CIA, we have never held or
ing its other function of advising the Presi-
seriously considered that they might not be
dent. In fact, the reports under considera-
"agencies" when acting in this capacity.
tion in Soucie were requested by the Presi-
As we indicated above, other departments
dent precisely for advisory purposes, but we
-State, Defense-come quickly to mind as
18. 145 U.S.App.D.C. 144, 150-53, 448 F.2d
20. See 145 U.S.App.D.C. at 150-53, 448 F.2d at
1067, 1073-76 (D.C. Cir. 1971).
1073-76.
19. See S.Rep.No.1200, 93d Cong., 2d Sess. 15
21. See id., 145 U.S.App.D.C. at 152-155, 448
(1974). Failure to exempt presidential staff
F.2d at 1075-76.
from the FOIA would raise a constitutional
22. See Forsham V. Califano, 190 U.S.App.D.C.
issue of separation of powers. See Soucie V.
231, 236-41; 587 F.2d 1128, 1133-38 (D.C. Cir.
David, 145 U.S.App.D.C. at 157-58, 448 F.2d at
1978), cert. granted, 441 U.S. 942, 99 S.Ct.
1080-81 (Wilkey, J., concurring).
2159, 60 L.Ed.2d 1044 (1979).
RYAN V. DEPARTMENT OF JUSTICE
789
Cite as 817 F.2d 781 (1980)
examples where the Government's argu-
emption 5 of the FOIA. The district court
ment proves far too much. Many cabinet
did not decide this issue, since it considered
officers, like the Attorney General, or the
the agency records issue a sufficient basis
Office of Legal Counsel under him, act as
on which to dispose of the case. An appel-
advisors to the President for many of their
late court normally does not give considera-
important functions; yet they are not mem-
tion to issues that were neither raised nor
bers of the presidential staff or exclusively
decided below; 24 in this case, however, the
presidential advisors, and are thus not ex-
Exemption 5 issue was raised and briefed in
empt from FOIA requirements. The
summary judgment motions before the dis-
Government cites a district court case
trict court. On those portions of the Ex-
which held the Pardon Attorney of the Jus-
emption 5 issue that we decide today, we do
tice Department not to be an agency for
not believe there is any doubt as to the
FOIA purposes, because his sole function is
proper resolution of the case, and the delay
to advise and assist the President. What-
of extensive further proceedings in district
ever the merits of this reasoning-yet to be
court could render appellants' efforts futile.
determined in this court-we face an easier
question in this case because the Attorney
Thus it is fully appropriate for us to pro-
General has functions in addition to advis-
ceed to the Exemption 5 issue.
ing the President. Any unit or official that
Exemption 5 applies to "inter-agency or
is part of an agency and has non-advisory
intra-agency memorandums or letters
functions cannot be considered a non-agen-
which would not be available by law to a
cy in selected contexts on a case-by-case
party other than an agency in litigation
basis.
with the agency." Appellants argue that
It is certainly true, as the Government
since the documents at issue here were sub-
contends, that had the President's staff it-
mitted to the Department of Justice by
self solicited these responses from Senators,
Senators, who are not agencies within the
the documents would not be agency records.
meaning of the FOIA, the documents can-
In many different areas the President has a
not be termed "inter-agency" or "intra-
choice between using his staff to perform a
agency."
function and using an agency to perform it.
While not always substantively significant,
[4] When interpreted in light of its pur-
these choices are often unavoidably signifi-
pose, however, the language of Exemption
cant for FOIA purposes, because the Act
5 clearly embraces this situation. The ex-
defines agencies as subject to disclosure and
emption was created to protect the deliber-
presidential staff as exempt. To redraw
ative process of the government, by ensur-
this statutory line in a different manner,
ing that persons in an advisory role would
based on complex functional considerations,
be able to express their opinions freely to
would strain the language of the Act and
agency decision-makers without fear of
present much greater complexity in litiga-
publicity.* In the course of its day-to-day
tion.
activities, an agency often needs to rely on
the opinions and recommendations of tem-
III. THE APPLICABILITY OF
porary consultants, as well as its own em-
FOIA EXEMPTION 5
ployees. Such consultations are an integral
[3] We proceed now to consider whether
part of its deliberative process; to conduct
the requested documents fall within Ex-
this process in public view would inhibit
23. See Stassi V. Department of Justice, No.
26. 5 U.S.C. & 552(b)(5) (1976).
78-532 (D.D.C.1979).
27. See H.R.Rep.No.1497, 89th Cong., 2d Sess.
24. See Hormel V. Helvering, 312 U.S. 552, 556-
10 (1966); S.Rep.No.813, 89th Cong., 1st Sess.
57, 61 S.Ct. 719, 85 L.Ed.2d 1037 (1941).
9 (1965), U.S.Code Cong. & Admin.News 1966,
p. 2418.
25. See Singleton v. Wulff, 428 U.S. 106, 121, 96
S.Ct. 2868, 49 L.Ed.2d 826 (1976).
790
617 FEDERAL REPORTER, 2d SERIES
frank discussion of policy matters and likely
document to be an "intra-agency" memo-
impair the quality of decisions.
randum for purposes of determining the
[5-7] We start from the proposition that
applicability of Exemption 5. This common
FOIA exemptions are to be interpreted nar-
sense interpretation of "intra-agency" to
rowly. The Senate Committee attempted
accommodate the realities of the typical
to keep Exemption 5 as narrow as was
agency deliberative process has been con-
"consistent with efficient Government oper-
sistently followed by the courts.
ation." 28 Unquestionably, efficient govern-
[8-10] Exemption 5 protects only those
ment operation requires open discussions
memoranda which would not normally be
among all government policy-makers and
discoverable in civil litigation against an
advisors, whether those giving advice are
agency." The standard of what is discover-
officially part of the agency or are solicited
able in civil litigation against an agency, as
to give advice only for specific projects.
interpreted by the Supreme Court, indicates
Congress apparently did not intend "inter-
that purely factual material which is sever-
agency" and "intra-agency" to be rigidly
able from the policy advice contained in a
exclusive terms, but rather to include any
document, and which would not compromise
agency document that is part of the deliber-
the confidential remainder of the document,
ative process. We cannot overlook the fact
must be disclosed in an FOIA suit. This
that the documents here were generated by
court has further elaborated the standard
an initiative from the Department of Jus-
for determining which segments of an ad-
tice, i. e., the questionnaire sent out by the
visory document are disclosable under Ex-
Department to the Senators. The Senators
emption 5. We have held that factual seg-
replied to the questionnaire. The question-
ments are protected from disclosure as not
naire plus replies must correspond in origin
being purely factual if the manner of se-
and process to literally millions of docu-
lecting or presenting those facts would re-
ments and memoranda of various kinds on a
veal the deliberate process,³ or if the facts
myriad of subjects which repose in the files
are "inextricably intertwined" with the pol-
of the executive departments and indepen-
icy-making process. The Supreme Court
dent agencies, i. e., memoranda which were
has substantially endorsed this standard.
created by someone outside the executive
branch but in response to an initiative from
[11-13] As an additional ground, appel-
the executive branch. When an agency
lants argue that advisory material in the
record is submitted by outside consultants
questionnaires should be disclosed if it rep-
as part of the deliberative process, and it
resents a final decision rather than interim
was solicited by the agency, we find it
advice. Exemption 5 does not apply to
entirely reasonable to deem the resulting
final actions of agencies, in the sense of
28. S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965).
31. 5 U.S.C. § 552(b)(5) (1976).
29. For example, the Department of Agriculture
32. See Environmental Protection Agency V.
must have bales of information in response to
Mink, 410 U.S. 73, 91, 93 S.Ct. 827, 35 L.Ed.2d
questionnaires.
119 (1973).
30. See Brockway V. Department of Air Force,
33. See Montrose Chem. Corp. V. Train, 160
518 F.2d 1184, 1191 (8th Cir. 1975) (statements
U.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.
of witnesses in a military aircraft safety investi-
Cir. 1974).
gation are within Exemption 5); Wu V. Nation-
al Endowment for Humanities, 460 F.2d 1030,
1032 (5th Cir. 1972) (statements of professors
34. See Soucie V. David, 145 U.S.App.D.C. at
who were not agency employees deemed to be
155, 448 F.2d at 1078.
intra-agency memoranda), cert. denied, 410
U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973);
35. See Environmental Protection Agency V.
Soucie V. David, 145 U.S.App.D.C. 144, 155,
Mink, 410 U.S. 73, 92, 93 S.Ct. 827, 838, 35
448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) (mate-
L.Ed.2d 119 (1973).
rials prepared for an agency by outside experts
should be treated as intra-agency memoranda).
RYAN V. DEPARTMENT OF JUSTICE
791
Cite as 617 F.2d 781 (1980)
10-
statements of policy and .final opinions
5. With respect to each person recom-
he
which have the force of law or which ex-
mended, submit a copy of any question-
on
plain actions an agency has already taken.
naire or resume of biographical informa-
to
Further, Exemption 5 applies only to com-
tion furnished by that person.
munications before the adoption of an agen-
6. If a nominating commission was
in-
cy policy; communications that promulgate
used:
or implement an established policy are not
privileged. In the present case, however,
(a) how was the commission appoint-
se
the communications all precede the
ed?
adoption of any agency policy-i. e., the
(b) how many persons were on the
an
Attorney General's evaluation of selection
commission?
is
processes and transmittal of his own recom-
(c) how many of the members were
as
mendations to the President-and also pre-
female?
cede the final action on nominations that
(d) how many of the members were
can only be taken by the President with
of a minority race?
consent of the Senate. That an individual
Senator may have taken final action by
(e) how many of the members were
deciding which potential nominees he will
non-lawyers?
recommend, as urged by. appellants, is not
Some segments of Senators' responses to
2
material to whether the documents consti-
these questions will be factual, and disclo-
d-
tute a final opinion or action of an agency.
sure of them will not reveal aspects of the
Hence finality cannot justify disclosure of
deliberative process. Answers to questions
de
the questionnaire answers in this case.
3 and 6 will clearly be of this nature. Ex-
ot
[14] We conclude that the requested
pressions of personal views or recommenda-
de
documents are exempt from FOIA disclo-
tions of a Senator, on the other hand, are
sure under Exemption 5, except for factual
clearly exempt from disclosure. Other seg-
to
segments which do not reveal the delibera-
ments of responses may or may not be
tive process and are not intertwined with
subject to disclosure, depending on circum-
the policy-making process. On remand the
35
stances to be evaluated on remand. Any
district court will determine which seg-
biographical information of a routine, non-
ments are disclosable under this standard.
private nature, such as would commonly
he
Because expedition is necessary in this case,
appear in Who's Who or similar reference
we comment on those aspects of disclosabili-
works, is not inextricably intertwined with
ty that are clear on the record before us.
the protected deliberative process of mak-
to
The questionnaires sent by the Attorney
ing recommendations, and is thus subject to
General to the Senators asked for the fol-
disclosure. Other more probing analysis of
lowing information:
a candidate's background, on the other
1. Describe the effort which was
hand, might constitute a specific recommen-
made to identify qualified candidates.
dation of the candidate on grounds of his
2. Describe the process by which all
qualifications and experience, and thus be
persons identified and interested were
exempt.
considered?
3. How many persons were con-
sidered?
IV. EXEMPTION 6 ISSUE
4. With respect to each person recom-
[15] The Government claims on appeal
mended, does he or she meet each of the
that some portions of the Senators' respons-
standards set forth in Section 2 of the
es to the Department questionnaire may be
Executive Order?
within FOIA Exemption 6, for "personnel
36. See National Labor Relations Board V.
37. See Jordan V. United States Department of
Sears, Roebuck & Co., 421 U.S. 132, 153-54, 95
Justice, 192 U.S.App.D.C. 144, 165, 591 F.2d
S.Ct. 1504, 44 L.Ed.2d 29 (1975).
753, 774 (D.C. Cir. 1978) (en banc).
792
617 FEDERAL REPORTER, 2d SERIES
and medical files and similar files the dis-
show extraordinary circumstances. On the-
closure of which would constitute a clearly
present record, the need to claim such ex-
1
unwarranted invasion of personal priva-
traordinary circumstances is diminished by
cy," 38 and that the Government should be
the likelihood that sensitive material
allowed to raise this exemption upon re-
ing on a potential nominee will be inter
mand to the district court. The Govern-
twined with advice based on his qualifica
Jo
ment did not raise Exemption 6, however,
tions and experience, and thus come within
F
in the original proceedings before the dis-
Exemption 5.
trict court. This court has held that an
agency must identify the specific statutory
V. CONCLUSION
exemptions relied upon, and do so at least
by the time of the district court proceed-
[16] Since we find the requested does-
ings.³⁹ This the Government has failed to
ments to be agency records, we must order
do. The danger of permitting the Govern-
disclosure of all segments not within specif
ment to raise its FOIA exemption claims
ic FOIA exemptions. On remand, the dis-
one at a time, at different stages of a
trict court will, according to accepted proce-
district court proceeding, is especially ap-
dures, order the Government to disclose all
parent in this case, where any delay
purely factual material in the responses and
Fede
through this means could easily render the
to identify those advisory segments protect-
ing t
appellants' claim futile. We therefore hold,
ed by Exemption 5.41 It may then be neces-
ly in
in accordance with our en banc decision in
sary for the district court to inspect docu-
the si
Jordan V. U. S. Department of Justice, that
ments in camera to decide if individual seg-
mate
the Government may not raise FOIA Ex-
ments do properly fall within Exemption 5.
track
emption 6 upon remand to the district
The judgment of the district court is vacat-
hour
court.
ed and the case remanded for further pro-4
tions.
As we have noted in Jordan, there is a
ceedings in accordance with this opinion.
the I
possible exception to this disqualification,
So ordered.
J., he
under 28 U.S.C. § 2106, in that the appellate
the
court has discretion to remand the case and
grant
"require such further proceedings to be
road,
had as may be just under the circumstane-
the in
es.' 40 This could happen in the present
KEY NUMBER SYSTEM
istrat
case if sensitive, personal private informa-
pendi
tion might be revealed. The Government
that :
may of course raise such a claim if warrant-
the &
ed at the district court, but only if it can
order
admi
38. 5 U.S.C. $ 552(b) (1976).
apply, the Government did not meet its burden"
of demonstrating that the exemption applies.
was 1
38a. In its Petition for Rehearing, the Govern-
The Government did not assert Exemption 6 as
I
ment points out that it did mention Exemption
a defense in a manner in which the district
6 in one sentence of a footnote to its Memoran-
court could rule on the issue. Thus the govern-
1
dum of Points and Authorities submitted to the
ment did not "raise" Exemption 6 at the district
filed
district court. The purpose of this footnote
court level in the manner required by Jordan.
was to inform the district court that the
I
Government did not wish its assertion of Ex-
39. See Jordan V. United States Department of
emption 5 to be construed as waiving the possi-
Justice, 192 U.S.App.D.C. at 170, 591 F.2d at
ble applicability of remaining exemptions under
779.
Fede
section 552(b), for example Exemption 6. Our
opinion in Jordan V. United States Department
of Justice, however, requires that the agency
40. Id. 192 U.S.App.D.C. at 171, 591 F.2d at 780
injur
raise the exemption by identifying it at the
(quoting 28 U.S.C. $ 2106 (1976)).
strai
district court level and by demonstrating that
41. See Vaughn V. Rosen, 157 U.S.App.D.C. 340,
from
the exemption applies to the documents in
question. See 591 F.2d at 779. By simply
484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
oper
stating that "for example" Exemption 6 might
U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
nied
838
636 FEDERAL REPORTER, 2d SERIES
these factors as they appear in the case at
era review of certain documents was neces-
5. Rec
bar, the court should have construed all
sary; and (4) the court properly denied the
Ce
ambiguous or disputed facts in the light
CIA's motion for partial relief from judg-
tled t
most favorable to the defendants. Had this
ment, which included an offer of an in
church
been done, the defendants' motion to vacate
camera affidavit.
in cart
the entry of the default judgment would
Affirmed in part, reversed and remand-
intellig
have been granted. We therefore reverse
ed in part.
contain
and remand for entry of an order setting
Agenc
aside the default judgment and for further
tee
proceedings not inconsistent with this deci-
1. Records
53
§ 552(
sion.
Congress can assert its exemption from
§ 102(
Reversed and remanded.
Freedom of Information Act and can also
reassert the exemption; however, exemp-
6. Fed
tion can be lost if there is a request for
Rec
documents at a time when Congress has not
A
KEY NUMBER SYSTEM
designated the documents as falling within
tended
congressional control. 5 U.S.C.A.
from
$ 551(1)(A).
show,
docum
2. Records
53
davits
HOLY SPIRIT ASSOCIATION FOR THE
An entire document is not exempt from
conclu
UNIFICATION OF WORLD
Freedom of Information Act merely be-
dards,
CHRISTIANITY, Appellant,
cause isolated portions of it may be protect-
if aff
ed from disclosure. 5 U.S.C.A. § 552.
V.
suffici
CENTRAL INTELLIGENCE AGENCY
3. Records
54
exemp
and Stansfield Turner.
Thirty-five documents generated by
not co
Congress and requested by church from
is no
Nos. 79-2143, 79-2202.
Central Intelligence Agency under Freedom
summ
United States Court of Appeals,
of Information Act were not excluded from
in can
District of Columbia Circuit.
disclosure as congressional records, in that
C.A. $
even if they were once excluded as congres-
7. Re
Argued Sept. 9, 1980.
sional records, they were no longer covered
T
Decided Dec. 23, 1980.
by that exemption since nothing either in
deterr
As Amended April 2, 1981.
circumstances of their creation or in condi-
tral 1
tions under which they were sent to the
Appeals were taken from an order of
necess
CIA indicated Congress' intent to retain
the United States District Court for the
docum
control over the records or to preserve
District of Columbia, Gerhard A. Gesell, J.,
der F1
their secrecy. 5 U.S.C.A. § 551(1)(A).
ruling that most of the material requested
al sec
by church from Central Intelligence Agency
4. Records
54
vits w
under the Freedom of Information Act was
Documents created by Central Intelli-
impos
exempt, but ordering disclosure of segments
gence Agency which were related to a con-
of the
of certain documents. The Court of Ap-
gressional investigation were not exempt
securi
peals, Mikva, Circuit Judge, held that: (1)
from disclosure under Freedom of Informa-
8. Re
neither the Congress-created records trans-
tion Act as congressional records, in that
T
ferred to the CIA nor the CIA-generated
even if they were once congressional docu-
distri
documents sent to Congress were con-
ments since they were generated in re-
segm
gressional records immune from disclosure;
sponse to congressional inquiry and trans-
Agen
(2) the CIA was entitled to withhold certain
ferred to Congress, they subsequently lost
unde
documents in carrying out its statutory duty
their exemption when Congress failed to
have
to protect intelligence sources; (3) the dis-
retain control over them. 5 U.S.C.A.
quire
trict court properly determined that in cam-
$ 551(1)(A).
over
HOLY SPIRIT ASS'N, ETC. V. C. I. A.
839
Cite as 636 F.2d 838 (1980)
5. Records
55
tents, and Agency did not allege any preju-
Central Intelligence Agency was enti-
dice to its efforts on appeal from failure of
6.0
tled to withhold documents sought by
court to give a full explanation for its order
in
church under Freedom of Information Act
of disclosure. 5 U.S.C.A. § 552.
in carrying out its statutory duty to protect
9. Records
67
intelligence sources, in that information
District court did not abuse discretion
contained in documents was of type that
in denying Central Intelligence Agency's
Agency could not obtain without a guaran-
motion for partial relief from judgment or-
tee of confidentiality. 5 U.S.C.A.
dering it to disclose documents pursuant to
§a552(b)(3); National Security Act of 1947,
Freedom of Information Act and refusing
§ 102(d)(3), 50 U.S.C.A. § 403(d)(3).
8
Agency's post-judgment offer of an in cam-
6. Federal Civil Procedure
2539
era affidavit explaining in greater detail
or
Records
65, 66
Agency's determination that the material
Affidavits submitted by an agency in-
was covered by exemptions. 5 U.S.C.A. $
tended to show exemption of documents
552(b)(1,3).
from Freedom of Information Act must
show, with reasonable specificity, why the
Appeal from the United States District
documents fall within the exemption; affi-
Court for the District of Columbia (D.C.
davits will not suffice if agency's claims are
Civil Action No. 79-0151).
conclusory, merely reciting statutory stan-
dards, or if they are too vague or sweeping;
Dorothy Sellers, Washington, D. C., for
if affidavits provide specific information
appellant.
sufficient to place documents within the
Freddi Lipstein, Atty., Civ. Div., Dept. of
exemption category, if such information is
Justice, Washington, D. C., with whom Al-
by
not contradicted in the record, and if there
ice Daniel, Asst. Atty. Gen., Charles F. C.
e
is no evidence of agency bad faith, then
Ruff, U.S. Atty., and Leonard Schaitman,
m
summary judgment is appropriate without
Atty., Civ. Div., Dept. of Justice, Wash-
m
in camera review of the documents. 5 U.S.
ington, D. C., were on the brief, for appel-
C.A. § 552(b).
lee.
7. Records
66
Stanley M. Brand, Gen. Counsel to the
d
Trial court did not abuse discretion in
Clerk, United States House of Representa-
determining that in camera review of Cen-
tives, Washington, D. C., with whom Steven
1
tral Intelligence Agency documents was
R. Ross, Asst. Counsel to the Clerk, Wash-
necessary to determine Agency's claim that
ington, D. C., was on the brief, for amicus
documents were exempt from disclosure un-
curiae, Clerk of the United States House of
der Freedom of Information Act for nation-
Representatives.
al security reasons where Agency's affida-
Before BAZELON, Senior Circuit Judge,
vits were of a general nature which made it
and MIKVA and EDWARDS, Circuit
impossible to undertake meaningful review
Judges.
of the CIA's claims in the area of national
security. 5 U.S.C.A. § 552(a)(4)(B), (b)(1).
Opinion for the Court filed by Circuit
Judge MIKVA.
8. Records
63
While a more complete indication of
MIKVA, Circuit Judge:
district court's rationale for its order that
In May of 1978, appellant (Unification
segments of a few Central Intelligence
Church) filed a request pursuant to the
Agency documents be disclosed to church
Freedom of Information Act (FOIA or Act),
under Freedom of Information Act would
5 U.S.C. § 552 (1976), for all Central Intelli-
have been helpful, such failure did not re-
gence Agency (CIA or Agency) records re-
quire reversal, in that Agency had custody
lating to the Church or to its members.
over documents and knowledge of their con-
When the Agency failed to respond, appel-
840
636 FEDERAL REPORTER, 2d SERIES
lant filed this action for injunctive relief.
On cross-appeal, the CIA challenges the
Since then, the Agency has disclosed some
court's order of disclosure with respect to
documents in their entirety but, claiming a
six documents. The Agency alleges three
variety of exemptions, has withheld parts
errors: that the court did not give substan-
or all of others. On cross-motions for sum-
tial weight to the Agency's affidavits; that
mary judgment, and after examining the
the court failed to articulate reasons for its
documents in camera, the court below ruled
disclosure order; and that the court refused
that most of the unreleased material was
to accept the Agency's post-judgment offer
exempt. The court did, however, order dis-
of further evidence in the form of an in
closure of at least segments of nine docu-
camera affidavit. We reject all arguments
ments. Each party appeals from that por-
raised on the cross-appeal.
tion of the district court's order adverse to
it.1
The Church appeals the court's ruling
I. COMMUNICATIONS BETWEEN
that about fifty of the documents were not
CONGRESS AND THE CIA
agency records because they were subject to
congressional control and therefore were
A. Records Generated by Congress
exempt under 5 U.S.C. § 551(1)(A) (1976).
Of these documents, thirty-five were gener-
Thirty-five of the documents the Church
ated by Congress and sent to the CIA for
seeks are, in the words of the court below,
reasons that are in dispute. The remaining
"correspondence and memoranda originated
fifteen originated in the Agency but were
by one of four congressional committees
related to congressional investigations;
that investigated various aspects of Korean-
some of these records were sent to Congress
American relations between 1976 and 1978."
and were then returned to the CIA-again
Mem. op. at 3, JA at 115 (footnote omitted).
for reasons that are not entirely clear. We
These materials were, the district court
find that these fifty documents, even if
found, sent to the CIA for safekeeping.
once excluded from the FOIA as congres-
Relying on this court's opinion in Goland V.
sional records, are no longer covered by that
Central Intelligence Agency, 607 F.2d 339
exemption because Congress failed to ex-
(D.C.Cir.1978), vacated in part on other
press with sufficient clarity its intent to
grounds, 607 F.2d 367 (D.C.Cir.1979), cert.
retain control over the documents. We
denied, 445 U.S. 927, 100 S.Ct. 1312, 63
therefore reverse the district court's hold-
L.Ed.2d 759 (1980), the court below ruled
ing with respect to these records and re-
that, because Congress retained control
mand for consideration of other exemptions
over the thirty-five documents, they were
of the Act which the Agency claimed apply
not "agency records" subject to disclosure
to these records and on which the court
under the FOIA.
below had no occasion to rule.
The Church also disputes the district
Although Goland does stand for the prop-
court's holding that the CIA could invoke
osition that records in an agency's posses-
FOIA exemption 3 and refuse to disclose
sion may be congressional documents, as
ten documents in order to protect intelli-
opposed to agency records, that case does
gence sources under 50 U.S.C. § 403(d)(3)
not support the conclusion of the court be-
(1976). Relying on this court's recent opin-
low. In Goland, this court began by noting
ion in Sims V. Central Intelligence Agency,
that "agency" as defined in the Administra-
Nos. 79-2203 & 79-2554 (D.C.Cir. Sept. 29,
tive Procedure Act does not include Con-
1980), we affirm the court's finding of
gress. See 5 U.S.C. § 551(1)(A) (1976).
exemption.2
Finding that Congress has the authority to
1. The district court's opinion, Civ. No. 79-0151
tected by FOIA exemptions 1, 3, and 6. Some
(D.D.C. July 30, 1979), is reprinted in the Joint
of these documents are involved in the cross-
Appendix (JA) at 113.
appeal, but the Church has not challenged the
district court's order that the bulk of the unre-
2. The court agreed with the CIA that the other
leased material is exempt.
deleted portions of the documents were pro-
HOLY SPIRIT ASS'N, ETC. V. C. I. A.
841
Cite as 636 F.2d 838 (1980)
keep its records secret, the court articulated
CIA's structure and disposition of func-
the following test for determining the ap-
tions." 607 F.2d at 347 (footnote omitted).
plicability of the FOIA to documents such
as those requested here:
[2] In contrast, the circumstances sur-
Whether a congressionally generated doc-
rounding Congress' creation of the docu-
ument has become an agency record
ments requested by the Church do not dem-
depends on whether under all the facts of
onstrate any intent that they be kept se-
the "case the document has passed from
cret. The district court failed to analyze
the control of Congress and become prop-
this first element of the Goland test, and
erty subject to the free disposition of the
appellees can only assert that the records
were "created in the context of sensitive
agency with which the document resides.
investigations concerning Korean-American
607 F.2d at 347. The court considered two
relations." Brief for Appellee at 31. Al-
factors dispositive: the circumstances at-
though perhaps sensitive, not every aspect
tending the document's creation and the
of the work of these congressional commit-
conditions under which it was transferred
tees was confidential; in fact, the House
to the agency. Consideration of those fac-
Subcommittee on International Relations
tors led the court to hold that the document
sought by plaintiffs there-a stenographic
published a 1200-page report on the investi-
transcript of hearings held before a House
gation. Appellees' general characterization
committee, which had been forwarded to
thus does not suffice to prove that no part
the CIA-was a congressional, rather than
of the thirty-five documents may be dis-
closed.3
an agency, record.
[1] Thus, Congress can assert its exemp-
The second prong of the Goland test in-
tion from the FOIA; it can also reassert
quires whether Congress transferred the
the exemption. But the exemption can be
records in such a way as to manifest its
lost if there is a request for documents at a
intent to retain control. In Goland, for
time when Congress has not designated the
example, this court found that
documents as falling within congressional
[t]he fact that the CIA retains the Tran-
control.
script solely for internal reference pur-
poses indicates that the document is in no
Comparison of the facts of Goland with
those involved here convinces us that Con-
meaningful sense the property of the
gress did not indicate its intent to maintain
CIA; the Agency is not free to dispose of
the Transcript as it wills, but holds the
control over the documents requested by
the Church. The hearing transcript at issue
document, as it were, as a "trustee" for
in Goland was quite obviously meant to be
Congress.
secret: the congressional committee met in
607 F.2d at 347 (emphasis supplied).
executive session to conduct the hearing;
[3] Here, the Agency maintains-and
the stenographer and typist were sworn to
the district court agreed-that the CIA was
secrecy; and the transcript was marked
given the records for safekeeping. But the
"Secret." In addition, the confidential na-
record does not support that finding. The
ture of the transcript was evident-it was
Agency affidavit discussing these docu-
known to contain "discussions of basic ele-
ments does not specify the purpose of their
ments of intelligence methodology, both of
transfer to the CIA. See Affidavit of Fred-
this country and of friendly foreign govern-
erick P. Hitz, CIA Legislative Council, JA
ments, as well as detailed discussions of the
at 99.4 Moreover, that affidavit makes
3. An entire document is, of course, not exempt
4. In contrast, in describing three sealed cartons
merely because isolated portions of it may be
of other documents transferred to the CIA from
protected from disclosure. See Vaughn V. Ro-
the House Committee on International Rela-
sen, 484 F.2d 820, 825 (D.C.Cir.19 cert. de-
tions, the affidavit specifies that "[s]ince the
nied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d
cartons are merely held by CIA in security
873 (1974).
custody, the actual contents are not known to
CIA." JA at 100.
842
636 FEDERAL REPORTER, 2d SERIES
clear that only some congressional- docu-
safekeeping. See Hitz Affidavit, JA at 100.
ments transferred to the C1A contain classi-
The thirty-five documents in dispute here,
fied information or details of intelligence
on the other hand, were forwarded to the
activities. See id. at 100.
CIA without any such instructions, and the
As evidence of Congress' intent to retain
Agency appears to be aware of their con-
control over these records, the court below
tent.
and appellees do point to a letter to the CIA
Although we hold that Congress failed to
from the Clerk of the House of Representa-
assert control over these thirty-five docu-
tives, which objected to the release of any
ments, we do not adopt appellant's posi-
portion of the thirty-five documents. See
tion-that Congress must give contempora-
JA at 104. But this letter was written as a
neous instructions when forwarding con-
result of the Church's FOIA request and
gressional records to an agency. Nor do we
this litigation-long after the actual trans-
direct Congress to act in a particular way in*
fer to the CIA. See id. ; Document Dispo-
order to preserve its FOIA exemption for
sition Index, JA at 75. We do not consider
transferred documents. Nevertheless, both
the letter sufficient evidence that Congress
the spirit of the Act and Goland require
forwarded the documents to the Agency
some clear assertion of congressional con-
only "for a limited purpose and on condition
trol. Nothing here-either in the circum-
of secrecy." Goland, 607 F.2d at 348 n.48.
stances of the documents' creation or in the
Cf. Halperin V. Department of State, 565
conditions under which they were sent to
F.2d 699, 705 (D.C.Cir.1977) (remarks re-
the CIA-indicates Congress' intent to re-
garding national security justification for
tain control over the records or to preserve
classification of press conference transcript,
their secrecy.
which were made five months after classifi-
cation and eight months after press confer-
B. Records Generated by the CIA
ence, did not necessarily reflect true reasons
[4] Also in dispute are fifteen docu-
for classification).
ments created by the CIA and related to
Comparison of the circumstances sur-
Congress' investigation of Korean-Ameri-
rounding the transfer to the CIA of three
can relations. Eleven of these were sent to
sealed cartons of additional congressional
Congress in response to a congressional in-
documents is instructive. These records,
quiry and were then returned to the Agen-
which are not at issue here, also relate to
cy, again without instruction. The court
Congress' investigation into Korean-Ameri-
below read Goland as extending to these
can relations. When these materials were
eleven documents and to all materials pre-
sent to the Agency, they were accompanied
pared by an agency specifically at the re-
by a memorandum from the House Commit-
quest of Congress. Mem. op. at 4, JA at
tee on International Relations indicating
116. The court refused, however, to apply
that the Committee retained jurisdiction
Goland to purely internal memoranda that
over the documents, that the documents
are created at the initiative of the agency
contained classified information, and that
and are not intended for Congress, even if
access to the files was limited to those with
such documents relate to congressional in-
authorization from the Clerk of the House.
vestigations. Id. at 4-5, JA at 116-17. The
JA at 103. As a result of these instructions,
court found that four of the fifteen docu-
the Agency has not opened the sealed car-
ments were merely inter- or intra-agency
tons, does not know their contents, and
memoranda that were not directly sent to
maintains them for the express purpose of
Congress and therefore were not entitled to
5. We reject the Agency's assertion that the
to the three boxes of documents which it ac-
memorandum accompanying the three sealed
companied. See JA at 103.
cartons of materials was intended to apply also
to the thirty-five documents at issue here.
6. These are Documents 47-61.
That memorandum seems specifically related
HOLY SPIRIT ASS'N, ETC. V. C. I. A.
843
Cite as 636 F.2d 838 (1980)
100.
exemption as congressional documents. Id.
tion 5 of the Act, 5 U.S.C. § 552(b)(5); and
ere,
at 5, JA at 117.⁷
constitutional protection of the legislative
the
We reverse the court's ruling that any of
process under the Speech or Debate Clause,
the
these fifteen records qualified as congres-
art. 1, $ 6, cl. 1. Because the court below
con-
sional records. In so doing, we do not find
found the documents exempt as congres-
it necessary to decide whether Goland,
sional records, it had no occasion to rule on
d to
which involved communications from Con-
these additional arguments. We therefore
gress to an agency, applies to transfers in
remand for consideration of the applicabili-
ocu-
the other direction. That is, we do not
ty of these exemptions.
osi-
resolve the question whether agency-creat-
ora-
ed records, when sent to Congress, can lose
II. PROTECTION OF INTELLIGENCE
con-
their status as agency records and become
SOURCES
we
exempt from FOIA disclosure. Instead,
[5] The second major challenge made by
y in
we hold that, even if these CIA-created
the Church involves ten documents with-
for
records were once congressional documents
held by the Agency on the ground that they
oth
because generated in response to congres-
were covered by exemption 3 of the FOIA,
sional inquiries and transferred to Congress,
5 U.S.C. § 552(b)(3), because their disclosure
on-
they subsequently lost their exemption as
would endanger intelligence sources. Ex-
im-
congressional records when Congress failed
emption 3 excludes from the FOIA's cover-
the
to retain control over them.
age records specifically exempted from dis-
to
Again, we rely on the two-pronged Go-
closure by statute. We have held that one
re-
land test. As with the congressional rec-
such withholding statute is section 102(d)(3)
rve
ords analyzed above, there is no evidence
of the National Security Act of 1947, 50
surrounding the generation of these CIA-
U.S.C. $ 403(d)(3) (1976), which imposes on
created records indicating that Congress in-
the Director of Central Intelligence respon-
tended that they remain secret. The condi-
sibility for "protecting intelligence sources
tions under which they were transferred
and methods from unauthorized disclosure."
to
back to the CIA are similarly ambiguous:
See, e. g., Halperin V. Central Intelligence
to
they were merely returned to the Agency
Agency, 629 F.2d 144, 147 & n.7 (D.C.Cir.
with no accompanying letter or instructions.
1980); Goland V. Central Intelligence Agen-
Appellees again point to the post hoc letter
cy, 607 F.2d 339, 349 (D.C.Cir.1978), vacated
n-
from the Clerk of the House, but, for the
in part on other grounds, 607 F.2d 367 (D.C.
reasons discussed above, we find that letter
Cir.1979), cert. denied, 445 U.S. 927, 100
insufficient evidence of Congress' intent to
S.Ct. 1312, 63 L.Ed.2d 759 (1980).
retain control over these documents.
The Church disputes the CIA's definition
The Agency argues in the alternative
of "intelligence source"; specifically, appel-
that, if the CIA-created documents are
lant contests the Agency's right to withhold
agency records and thus within the ambit of
documents under these statutes in order to
the FOIA, various other exceptions man-
protect those who have not received a
date nondisclosure of all or portions of the
pledge of confidentiality from the Agency.
materials: exemptions 1 and 3 of the FOIA,
Those who voluntarily provide information
which protect national security information
to the CIA, or do so without a promise of
and intelligence sources and methods, 5
confidentiality, argues the Church, are not
U.S.C. § 552(b)(1) & (3); the deliberative
intelligence sources within the meaning of
process privilege, included within exemp-
the statute.
7. The court directed the CIA to segregate non-
8. Cf. Goland, 607 F.2d at 348 n.48 (statement
exempt portions of these four documents (Doc-
prepared by CIA Director and delivered before
uments 52, 53, 56, & 57). After reviewing the
House Committee not a congressional docu-
supplemental materials and inspecting the doc-
ment).
uments in camera, the court held them protect-
ed by exemptions 1 and 3. The Church has not
appealed from this ruling.
844
636 FEDERAL REPORTER, 2d SERIES
Since briefing and argument in this case,
The index with respect to the remaining
in
this court has addressed this issue and ex-
four documents does not specifically men-
ca
amined the meaning of "intelligence
tion confidentiality, but we are satisfied
ar
source" in the context of FOIA disclosure.
from the descriptions that the information
A.
See Sims V. Central Intelligence Agency,
contained in those documents is of the type
Nos. 79-2203 & 79-2554 (D.C.Cir. Sept. 29,
that the Agency could not obtain without
1980). There, we rejected the broad defini-
lo
guarantee of confidentiality." Moreover,
tion of "intelligence source" advanced by
vit
the Agency affidavit accompanying the
the CIA in that case, which included anyone
th
Document Disposition Index indicates that
providing information rationally related to
co
national security. Instead, recognizing that
all documents withheld on the basis of ex-
cla
the appropriate focus is on "the practical
emption 3 contain information from persons
gi
necessity of secrecy," the court defined
who willingly cooperated with the CIA on a
af
"intelligence source" as follows:
pledge of secrecy. See Affidavit of Robert
ge
E. Owen, Information Review Officer for
19
[A] person or institution that provides,
the CIA's Directorate of Operations, JA at
60
has provided, or has been engaged to
23-24.
nie
provide the CIA with information of a
We therefore affirm the holding of the
79
kind the Agency needs to perform its
court below, as specified in its order, see
se
intelligence function effectively, yet
mem. op. at 6, JA at 118, that the Agency
co
could not reasonably expect to obtain
was entitled to withhold some of these ten
without guaranteeing the confidentiality
ag
documents in their entirety, and others in
of those who provide it.
part, in carrying out its statutory duty to
mi
Slip op. at 20. The court thus declined to
protect intelligence sources.
en
adopt either the expansive construction of
"intelligence source" suggested by the
III. THE CROSS-APPEAL
res
tio
Agency in Sims or the rigid interpretation
On cross-appeal, the CIA challenges the
sui
urged upon us here by the Church.
district court's ruling that portions of five
wi
Having applied the Sims definition to the
documents and another entire record must
me
documents at issue here, we find no error in
be disclosed to the Church. The court re-
the finding of the court below, which in-
jected the Agency's assertions that this ma-
spected the records in camera, that they are
terial was protected by exemptions 1, 3, and
covered by exemption 3. The Document
6.18 Although the government has turned
Disposition Index submitted by the Agen-
over the segments for which an exemption
*
cy specifically indicates that three of the
6 claim was made, it contests the court's
ten documents are withheld because their
finding that exemptions 1 and 3 are inappli-
disclosure would identify persons who gave
cable to these documents. Specifically, the
information with the understanding that it
Agency maintains that the court erred in
would be kept in confidence.¹ Three oth-
failing to give sufficient weight to the
ers detail "clandestine contracts" between
Agency's affidavits, in not providing rea-
the Agency and the informant.¹¹
sons for its disclosure order, and in reject-
9. The Document Disposition Index describes
12. See JA at 55-56 (Document 21); id. at 57-58
the various portions of the documents for
(Document 22); id. at 58 (Document 23); id. at
which the Agency claims exemption and the
70 (Document 39).
H
reasons for those claims, in compliance with
te
this court's opinion in Vaughn V. Rosen, 484
13. Exemption 1, 5 U.S.C. § 552(b)(1), protects
F.2d 820 (D.C.Clr.1973), cert. denied, 415 U.S.
classified, national security information. Ex-
977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
emption 3, id. $ 552(b)(3), covering material
d
specifically exempted by statute, prevents re-
n
10. See JA at 48 (Document 12); id. at 52 (Doc-
lease of records whose disclosure would endan-
h
ument 17); id. at 64 (Document 31).
ger intelligence sources. See section II supra.
Personnel and similar files whose disclosure
h
11. See JA at 42-43 (Document 4); id. at 45-46
would constitute a clearly unwarranted inva-
I
(Document 8); id. at 61 (Document 27).
sion of personal privacy are protected by ex-
1
emption 6, 5 U.S.C. § 552(b)(6).
HOLY SPIRIT ASS'N, ETC. V. C. I. A.
845
Cite as 636 F.2d 838 (1980)
emaining
ing the CIA's post-judgment offer of an in
the FOIA in 1974 to permit in camera in-
ally
men-
camera affidavit. We dismiss each of these
spection, see 5 U.S.C. § 552(a)(4)(B), Con-
satisfied
arguments in turn.
gress indicated its intent to facilitate in
ormation
A. Deference to Agency Affidavits
camera inspection and to minimize judicial
the
type
without
The CIA alleges, first, that the court be-
unwillingness to take an active role in re-
a
low failed to accord to the Agency's affida-
viewing FOIA claims. See Allen V. Central
Ioreover,
vits the deference required by decisions of
Intelligence Agency, 636 F.2d 1287 at 1294-
the
this court. The FOIA directs trial courts to
1297 (D.C.Cir.1980).
that
is
conduct de novo review of an agency's
of
ex-
claims of exemption, while at the same time
[7] The court below followed the appro-
persons
giving "substantial weight" to the agency's
priate procedures and standards here.
CIA
on
a
affidavits. See Halperin V. Central Intelli-
Finding that the Agency's affidavits were
Robert
gence Agency, 629 F.2d at 147-148 (D.C.Cir.
"of a general nature," which made it "im-
ficer
for
1980); Hayden V. National Security Agency,
possible to undertake meaningful review"
JA
at
608 F.2d 1381, 1384 (D.C.Cir.1979), cert. de-
of the CIA's "broad, often conclusory claims
nied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d
in the area of national security," the court
of
the
790 (1980). And, in the area of national
determined that in camera review was nec-
see
security, as is allegedly involved here,
essary. Mem. op. at 2, JA at 114 (footnote
Agency
courts must be especially sensitive to an
omitted). We do not find this characteriza-
ten
agency's expertise.
tion of the affidavits and Document Dispo-
hers
in
to
[6] Nevertheless, the affidavits sub-
sition Index inaccurate. The descriptions of
mitted by an agency must be specific
the documents are primarily conclusory and
enough to enable the judge to execute his
often repeat the terms of the FOIA, there-
responsibility to make a de novo determina-
by impeding the court's efforts to rule on
tion of exemption. Such affidavits will be
the claims of exemption. See Allen, 636 F.2d
the
sufficient to justify summary judgment
at 1292, 1294, 1298. As the court below rec-
of
five
without in camera inspection when they
ognized, such generality is understandable
must
meet the following standard:
in a national security context, where a de-
re-
[T]he affidavits must show, with reasona-
tailed affidavit may be as damaging to gov-
ma-
and
ble specificity, why the documents fall
ernmental concerns as actual disclosure of
3,
within the exemption. The affidavits
the document.
turned
will not suffice if the agency's claims are
The district court thus undertook to re-
conclusory, merely reciting statutory
ourt's
view the documents itself. We find no
standards, or if they are too vague or
appli-
abuse of discretion in this decision.
sweeping. If the affidavits provide spe-
the
cific information sufficient to place the
B. Explanation of Disclosure Order
in
documents within the exemption catego-
[8] The second argument raised by the
the
ry, if this information is not contradicted
Agency on cross-appeal criticizes the court
rea-
in the record, and if there is no evidence
below for failing to articulate a justifica-
eject-
in the record of agency bad faith, then
tion for its order that at least segments of a
57-58
summary judgment is appropriate with-
few documents be disclosed to the Church.
id.
at
out in camera review of the documents.
In ruling in appellant's favor, the court
Hayden, 608 F.2d at 1387 (footnotes omit-
merely remarked that the Agency's claims
ted).
of exemption had been "overly broad" with
Ex-
If the affidavits do not satisfy this stan-
respect to some documents. Mem. op. at 6,
terial
dard, the trial judge may inspect the docu-
JA at 118.
re-
ments in camera. In deciding whether and
This court has previously observed that a
upra.
how to conduct review in camera, the court
more informative statement of rationale by
osure
has substantial discretion. See Hayden, 608
trial courts facilitates the appellate inquiry
F.2d at 1384; Ray V. Turner, 587 F.2d 1187,
in FOIA cases. See Schwartz V. Internal
ex-
1195 (D.C.Cir.1978). In fact, in amending
Revenue Service, 511 F.2d 1303, 1307 (D.C.
846
636 FEDERAL REPORTER, 2d SERIES
Cir.1975); Vaughn V. Rosen, 484 F.2d 820,
Cir.1978), the CIA maintains that if the
825 (D.C.Cir.1973), cert. denied, 415 U.S.
court below found the Agency's affidavita/
977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974);
insufficient, it should have accepted the
Ackerly V. Ley, 420 F.2d 1336, 1341-42 (D.C.
post-judgment offer of additional proof
Cir.1969). And this court has even remand-
The national security ramifications of re-
ed for a more detailed explanation from the
vealing the information contained in the
trial court. See Ackerly, 420 F.2d at 1341-
documents may not have been apparent.
42; cf. Schwartz, 511 F.2d at 1307-08 (re-
notes the Agency, from inspecting the doeu-
versing district court's denial of motion for
ments.
clarification).
In Public Citizen Health Research Group,
Although we agree that a more complete
this court did reverse a trial court's refusal
indication of the district court's rationale
to examine an in camera affidavit that ex-
would have been helpful here, we decline to
plained why disclosure of the document at
reverse on this ground. The cases cited
issue would harm privacy interests. But
above emphasize the special importance of a
there the affidavit was submitted from the
statement of reasons to those requesting
outset and not, as here, after in camera
documents, who do not know the exact con-
inspection and judgment.
tent of the records and whose efforts to
argue for disclosure are therefore ham-
Even if an in camera affidavit would
pered. That need is less pressing where, as
have been helpful and appropriate here, the
here, those seeking a fuller justification
court below did not abuse its discretion in
from the district court are the ones with
denying the Agency's post-judgment offer
of proof.¹ The interests of judicial econo-
custody over the documents and knowledge
of their contents. And the CIA has not
my and finality militate against a court's
alleged here any prejudice to its efforts on
tolerating a piecemeal approach by a party.
appeal from the failure of the court below
This court has accordingly directed that
to say more than that inspection of the
agencies not make new exemption claims to
records did not corroborate the Agency's
a district court after the judge has ruled in
assertions of exemption.
the other party's favor. See Grumman Air-
craft Engineering Corp. V. Renegotiation
We wish to reiterate, however, that the
Bd., 482 F.2d 710, 721-22 (D.C.Cir.1978) (up-
preferable practice is a full explanation by
holding denial of motion for rehearing),
the district court of both rulings of exemp-
rev'd on other grounds, 421 U.S. 168, 95
tion and orders of disclosure. Here, for
S.Ct. 1491, 44 L.Ed.2d 57 (1975). Similarly,
example, the court below should have indi-
an agency may not wait until appeal to
cated why it found the documents unpro-
raise additional claims of exemption or ad-
tected by the exemptions claimed.
ditional rationales for the same claim. See
C. Post-Judgment Offer of Proof
Ryan V. Department of Justice, 617 F.2d
[9] Finally, the Agency argues that the
781, 792 (D.C.Cir.1980); Jordan V. United
court below erred in denying its Motion for
States Dep't of Justice, 591 F.2d 753, 779-
Partial Relief from Judgment, which in-
80 (D.C.Cir.1978) (en banc); Vaughn V. Ro-
cluded an offer of an in camera affidavit
sen, 523 F.2d 1136, 1143 (D.C.Cir.1975). In
explaining in greater detail the Agency's
Ryan, for example, the court warned of
determination that the material was cover-
"[t]he danger of permitting the Govern-
ed by exemptions 1 and 3. Citing Public
ment to raise its FOIA exemption claims
Citizen Health Research Group V. United
one at a time, at different stages of a
States Dep't of Labor, 591 F.2d 808 (D.C.
district court proceeding." 617 F.2d at 792.
14. The Agency did not, for example, submit a
15. This court has indicated that in camera affi-
motion for clarification, as had the appellant in
davits, though appropriate in some cases,
Schwartz V. Internal Revenue Service, 511 F.2d
should be used with caution because they do
1303 (D.C.Cir.1975).
not permit a response from the opposing party.
See Allen V. Central Intelligence Agency, 636
F.2d at 1298 n.63 (D.C.Cir.1980).
HOLY SPIRIT ASS'N, ETC. V. C.I.A.
847
Cite as 636 F.2d 838 (1980)
the
Here the Agency knew that the sufficien-
created records transferred to the CIA and
lavits
cy of its affidavits was at issue-the
the CIA-generated documents sent to Con-
I the
Church had questioned the government's
gress, we hold that neither set of materials
proof.
claims of exemption in its motion for sum-
contains congressional records immune
of re-
mary judgment. If the Agency felt that it
from the FOIA under 5 U.S.C. § 551(1)(A).
a the
could not give a complete explanation on
Congress obviously has the prerogative to
arent,
the record of its reasons for asserting ex-
act to ensure the secrecy of its records and
docu-
emptions 1 and 3, it should have considered
their exemption from the FOIA. But ap-
submitting an in camera affidavit at a
plying the criteria first articulated by this
Group,
much earlier point.
court in Goland V. Central Intelligence
efusal
Moreover, despite the Agency's sugges-
Agency, we detect nothing in either the
at ex-
tion to the contrary, this is not a case in
circumstances attending these documents'
ent at
which the government's exemption argu-
generation or the conditions under which
But
ments were not explored in depth below.
they were transferred between Congress
m the
The court conducted a thorough in camera
and the Agency that indicates that Con-
amera
inspection of the documents, and it had as a
gress intended to retain control over them.
guide the Agency's Document Disposition
Accordingly, we reverse on this point, but
would
Index, which explained in general terms the
remand for consideration of the Agency's
the
Agency's national security concerns and
other exemption claims never ruled on be-
in
justifications for its exemption claims. 16
low.
offer
An in camera affidavit may have provided
We affirm all other portions of the dis-
econo-
more details, but the contours of the CIA's
trict court's opinion and reject both the
court's
arguments were evident in the Index. And
Church's arguments with respect to the def-
party.
we have detected no indication that these
inition of "intelligence source" and the
that
arguments were not understood or fully
CIA's challenges on cross-appeal to the
to
considered by the court below. We there-
court's disclosure order.
in
fore find no abuse of discretion in the deni-
Reversed and remanded.
Air-
al of the Agency's Motion for Partial Relief
tiation
from Judgment and refusal of an in camera
(up-
affidavit."
aring).
KEY NUMBER SYSTEM
95
IV. CONCLUSION
to
Because we find that Congress failed to
ad-
exercise its control over both the Congress-
or
See
16. Typically, when an agency's affidavits are
peal. It only alleges that the court paid insuffi-
F.2d
an insufficient basis for summary judgment, a
cient attention to its affidavits and failed to
United
trial court will inspect the documents in cam-
understand the national security implications
779-
era or accept in camera affidavits. See Hayden
of disclosure, speculations that are unsup-
V. National Security Agency, 608 F.2d 1381,
ported by the record.
V.
Ro-
1384 (D.C.Cir. 1979), cert. denied, 446 U.S. 937,
We reject the Church's contention that the
In
100 S.Ct. 2156, 64 L.Ed.2d 790 (1980).
district court's imposition of a stay was an
of
17. Moreover, the court below granted the CIA
abuse of discretion. See Providence Journal
overn-
a stay of its disclosure order pending appeal,
Co. V. Federal Bureau of Investigation, 595 F.2d
claims
and the Agency has not been able to elaborate
889 (1st Cir. 1979).
of
a
on the need for an in camera affidavit on ap-
792.
affi-
cases,
do
party.
636
GOLAND V. CENTRAL INTELLIGENCE AGENCY
339
Cite as 607 F.2d 339 (1978)
ficed to demonstrate that the search for
Susan D. GOLAND and Patricia B.
responsive documents was complete; ac-
Skidmore, Appellants,
cordingly, the court's grant of summary
V.
judgment without discovery was within its
discretion.
CENTRAL INTELLIGENCE AGENCY
et al.
Affirmed.
No. 76-1800.
Bazelon, Circuit Judge, filed a dissent-
ing opinion and also dissented, with opinion,
United States Court of Appeals,
from the denial of rehearing.
District of Columbia Circuit.
Argued 5 Oct., 1977.
1. Records 14
Decided 23 May, 1978.
Transcript of hearings conducted by
Rehearing Denied 28 March, 1979.
the House Committee on Expenditures in
the Executive Department was a "congres-
In suit for an injunction directing the
sional document" and not an "agency rec-
Central Intelligence Agency to comply with
ord" within the meaning of the Freedom of
plaintiffs' request for documents relating to
Information Act, where the transcript was
the legislative history of the CIA's organic
released to the Central Intelligence Agency
statutes, the United States District Court,
for limited purposes as a reference docu-
for the District of Columbia, D.C.Civil 76-
ment only and remained within the control
0166, George L. Hart, Jr., J., granted sum-
of Congress. 5 U.S.C.A. §§ 551(1)(A), 552.
mary judgment in favor of the CIA, and
2. Records 14
plaintiffs appealed. The Court of Appeals,
Wilkey, Circuit Judge, held that: (1) tran-
As-regards the Freedom of Information
script of hearings conducted by the House
Act which requires that an agency make
Committee on Expenditures in the Execu-
agency records available to the public upon
tive Department was a "congressional docu-
reasonable request, an agency's possession
ment" and not an "agency record" within
of a document does not per se dictate that
the meaning of the Freedom of Information
document's status as an "agency record." 5
Act, where the transcript was released to
U.S.C.A. § 552.
the CIA for limited purposes as a reference
3. Records 14
document only and remained within the
An agency's possession of a document,
control of Congress; (2) deleted portions of
standing alone, no more dictates, for pur-
certain statement given by the Central In-
poses of the Freedom of Information Act,
telligence Director before the House Armed
Services Committee on 8 April 1948 were
that it is an "agency record" than the con-
gressional origins of a document, standing
properly withheld by the CIA under the
Freedom of Information Act's third exemp-
alone, dictate that it is not; whether a
tion, relating to matters "specifically ex-
congressionally generated document has be-
come an agency record, rather, depends on
empted from disclosure by statute," since
whether under all the facts of the case the
the nondisclosure provisions of the National
Security Act and the Central Intelligence
document has passed from the control of
Agency Act remain qualifying statutes un-
Congress and become property subject to
der amended exemption 3, and since the
the free disposition of the agency with
CIA showed by affidavit that release of the
which the document resides. 5 U.S.C.A.
statement in its entirety would reveal "in-
§ 552.
telligence sources and methods," and (3)
4. Records
14
plaintiffs made no showing of CIA bad
In ascertaining whether a record in the
faith sufficient to impugn information coor-
possession of an agency is nonetheless a
dinator's affidavit, which on its face suf-
congressional document exempt from disclo-
340
607 FEDERAL REPORTER, 2d SERIES
sure under the Freedom of Information
8. Records
14
Act, a court will accord due weight to these
As regards the Freedom of Information
factors: (1) Congress' clear intent to ex-
Act, Congress has instructed the courts to
empt congressional documents from disclo-
accord "substantial weight" to agency affi-
sure under FOIA; (2) Congress' clear pre-
davits in national security cases, and these
rogative to prevent disclosure of its own
affidavits are equally trustworthy when
confidential materials; and (3) the danger
they aver that all documents have been
of inhibiting the legislative and judicial
produced or are unidentifiable as when they
branches from making their records availa-
aver that identified documents are exempt.
ble to the executive branch. 5 U.S.C.A.
5 U.S.C.A. $ 552.
§ 552.
9. Federal Civil Procedure
2538
5. Records
14
While an agency's affidavits, on
a
When Congress, which has broad pow-
Freedom of Information Act motion for
ers to keep documents secret, transfers se-
summary judgment, must be relatively de-
cret documents to an agency for a limited
tailed and nonconclusory and must be sub-
purpose and on condition of secrecy, it does
mitted in good faith, the district court has
not thereby waive its own prerogatives of
discretion, if these requirements are met, to
confidentiality and resign itself to the Free-
forego discovery and award summary judg-
dom of Information Act exemptions which
ment on the basis of affidavits. 5 U.S.C.A.
bind the agency and not it. 5 U.S.C.A.
§ 552.
§ 552.
10. Records
14
6. Records
14
As regards a request for records under
Deleted portions of certain statement
the Freedom of Information Act, an agency
given by the Central Intelligence Director
is not required to reorganize its files in
before the House Armed Services Commit-
response to a plaintiff's request in the form
tee on 8 April 1948 were properly withheld
in which it was made, and if an agency has
by the Central Intelligence Agency under
not previously segregated the requested
the Freedom of Information Act's third ex-
class of records, production may be required
emption, relating to matters "specifically
only where the agency can identify that
exempted from disclosure by statute," since
material with reasonable effort. 5 U.S.C.A.
the nondisclosure provisions of the National
§ 552.
Security Act and the Central Intelligence
Agency Act remain qualifying statutes un-
11. Federal Civil Procedure
2539
der amended Exemption 3, and since the
In suit for an injunction directing the
CIA showed by affidavit that release of the
Central Intelligence Agency to comply with
statement in its entirety would reveal "in-
plaintiffs' request for documents relating to
telligence sources and methods." 5 U.S.
the legislative history of the CIA's organic
C.A. $ 552(b)(3); National Security Act of
statutes, plaintiffs made no showing of CIA
1947, § 102(d)(3), 50 U.S.C.A. § 403(d)(3);
bad faith sufficient to impugn information
Central Intelligence Agency Act of 1949,
coordinator's affidavit, which on Its face
§ 7, 50 U.S.C.A. § 403g.
sufficed to demonstrate that the search for
7. Federal Civil Procedure
2544
responsive documents was complete; ac-
cordingly, the court's grant of summary
In order to prevail on a Freedom of
judgment without discovery was within its
Information Act motion for summary judg-
discretion.
ment, the defending agency must prove
that each document that falls within the
class requested either has been produced, is
On Petition for Rehearing
unidentifiable, or is wholly exempt from the
12. Records
65
Act's inspection requirements. 5 U.S.C.A.
In suit for an injunction directing the
§ 552.
Central Intelligence Agency to comply with
GOLAND V. CENTRAL INTELLIGENCE AGENCY
341
Cite as 607 F.2d 339 (1978)
plaintiffs' request for documents relating to
19. Federal Courts
708
the legislative history of the CIA's organic
Factfinding and creation of a record
statutes, the mere fact that, subsequent to
are the functions of the district court;
the issuance of the Court of Appeals' opin-
therefore, consideration of newly discovered
ion affirming the district court's grant of
evidence is a matter for the district court.
summary judgment for the CIA, additional
documents were discovered did not, as a
20. Federal Civil Procedure
2655
substantive matter, impugn the accuracy of
Proper procedure for dealing with new-
CIA information coordinator's sworn affi-
ly discovered evidence is for the party. to
davits, since the issue was not whether any
move for relief from the judgment in the
further documents might conceivably exist
district court under Rule 60(b). Fed.Rules
but whether the CIA's search for responsive
Civ.Proc. Rule 60(b), 28 U.S.C.A.
documents was adequate. 5 U.S.C.A. $ 552.
21. Federal Courts
931
13. Records
62
Court of Appeals may, in appropriate
An agency, in response to a Freedom of
cases, have ample revisory power under
Information Act request, is required only to
statute providing that any
make reasonable efforts to find responsive
court of appellate jurisdiction may affirm,
materials; it is not required to reorganize
modify, vacate, set aside or reverse any
its filing system. 5 U.S.C.A. § 552.
judgment, decree or order of a court lawful-
14. Federal Civil Procedure
2655
ly brought before it for review," but the
Occasions when newly discovered evi-
instant suit, in which plaintiffs sought to
dence or changed circumstances will war-
compel the Central Intelligence Agency to
rant setting aside a final judgment are lim-
comply with their request for documents
ited procedurally as well as substantively.
relating to the legislative history of the
CIA's organic statutes, would not be a prop-
15. Federal Civil Procedure
2641
er occasion for such extraordinary relief,
Federal Courts
541
despite the CIA's postjudgment revelation
A final district court judgment may be
of various germane documents, since the
altered on direct review only through two
CIA's original failure to uncover said docu-
procedures: by appeal, and by a motion in
ments was fully understandable and not
district court for relief from the judgment
inconsistent with the district court's finding
under Federal Rule 60(b). Fed.Rules Civ.
that the search was thorough. 28 U.S.C.A.
Proc. Rule 60(b), 28 U.S.C.A.
§ 2106.
16. Federal Courts
707
22. Federal Civil Procedure
2643
Appellate review is ordinarily unaffect-
Rule 60(b) does not extinguish the his-
ed by matters not contained in the record.
torical authority of equity courts to reform
judgments in appropriate cases. Fed.Rules
17. Federal Courts
744
Civ.Proc. Rule 60(b), 28 U.S.C.A.
An appellate opinion is based on the
record before it, and hence cannot be set
23. Federal Civil Procedure
2658
aside on the basis of newly discovered facts
One-year limit on certain Rule 60(b)
outside the record.
motions is not applicable to an independent
action to relieve a party from a judgment,
18. Federal Courts
776
order or proceeding, leaving such indepen-
An appellate court has no fact-finding
dent action, apart from collateral attack, as
function; it cannot receive new evidence
the only manner of obtaining relief from a
from the parties, determine where the truth
judgment in those cases where a 60(b) mo-
determination.and base its decision on that
tion has become time barred. Fed.Rules
Civ.Proc. Rule 60(b), 28 U.S.C.A.
342
607 FEDERAL REPORTER, 2d SERIES
24. Records 54
of Justice, Washington, D. C., were on
Neither the discovery of additional doc-
for appellees.
uments, nor the Central Intelligence Agen-
Thomas C. Martin, Dept. of Justic
cy's delayed disclosure of this discovery, nor
Washington, D. C., entered an appearance
CIA's ultimate release of the documents in
for respondent.
any way undermined the Court of Appeals'
prior holdings that the congressional hear-
Before BAZELON, TAMM and WIL.
ing transcript was not an "agency record"
KEY, Circuit Judges.
but a congressional document to which the
Freedom of Information Act did not apply,
Opinion for the Court filed by WILKEY
Circuit Judge.
that the deleted portions of the Hillenkoet-
ter Statement could properly be withheld
OUTLINE OF OPINION
pursuant to FOIA Exemption 3, and that no
I. FACTUAL BACKGROUND
live and genuine controversy remained on
the definition of "agency records" issue. 5
II. COURSE OF THE LITIGATION
U.S.C.A. § 552; National Security Act of
III. ANALYSIS
1947, § 102(d)(3), 50 U.S.C.A. § 403(d)(3);
A. The Hearing Transcript
Central Intelligence Agency Act of 1949, §
B. The Hillenkoetter Statement
7, 50 U.S.C.A. § 403g.
C. The Thoroughness of the CIA's
Search for Responsive Docu-
25. Federal Courts - 945
ments
While the Court of Appeals, in its prior
D. The CIA's Definition of Agency
decision, declined to award attorneys' fees
"Records."
to plaintiffs, holding that plaintiffs had not
E. Attorneys' Fees
"substantially prevailed" even though the
Central Intelligence Agency had released
WILKEY, Circuit Judge:
certain statements after plaintiffs com-
This case arises under the Freedom of
menced suit to compel the CIA to comply
Information Act (FOIA).¹ Plaintiffs Go.
with plaintiffs' requests for documents re-
land and Skidmore requested documents
lating to the legislative history of the CIA's
from the Gentral Intelligence Agency (CIA)
organic statutes, the subsequent release by
relating to the legislative history of the
the CIA of additional documents discovered
Agency's organic statutes. In this suit they
postjudgment necessitated a remand for re-
challenge the thoroughness of the CIA's
consideration of the attorney's fees issue.
search for responsive documents and the
Agency's refusal to give them certain ad-
James H. Wallace, Jr., Washington, D. C.,
mittedly responsive material it does possess.
with whom Thomas C. Arthur and Mark H.
The district court granted summary judg-
Lynch, Washington, D. C., were on brief,
ment in favor of the CIA. We affirm.
Alan B. Morrison and Larry P. Ellsworth,
Washington D. C., were on the motion to
I. FACTUAL BACKGROUND
vacate and on the petition for rehearing,
The chronology of events must be elabo-
for appellants.
rated in some detail. On 2 May 1975 Sara
John F. Cordes, Atty., Dept. of Justice,
Holtz filed an FOIA request with the CIA,
Washington, D. C., with whom Earl J. Sil-
seeking access to "all records concerning
bert, U. S. Atty., Rex E. Lee, Asst. Atty.
the legislative history" of the National Se-
Gen., and Leonard Schaitman, Atty., Dept.
curity Act of 1947,3 the CIA Act of 1949,"
1. 5 U.S.C. § 552 (1976).
4. Act of 20 June 1949, ch. 227, §§ 1-10, 63 Stat.
208 (presently codified at 50 U.S.C. §§ 403a-
2. Holtz is not a party to this suit.
403j (1970)).
3. Act of 26 July 1947, ch. 343, § 102, 61 Stat.
497 (presently codified at 50 U.S.C. § 403
(1970)).
GOLAND V. CENTRAL INTELLIGENCE AGENCY
343
Cite as 607 F.2d 339 (1978)
and two bills introduced into Congress in
were no further communications between
xief,
1948 providing for the administration of the
Holtz and the CIA.
Agency." Specifically, Holtz requested ac-
On 20 October 1975 plaintiffs Goland and
stice,
õess to "all reports of the Committees of the
Skidmore notified the CIA that they, like
rance
House and Senate and the Conference Com-
Holtz, were "investigating the authority,
mittee which reported on the bills, and any
organization and administration" of the
WIL-
hearings which may have been held on
Agency, and requested "the documents re-
these bills or related to the subject of the
authority, organization and administration"
quested by Ms. Holtz' letters." Treating
the CIA's failure to respond within ten days
KEY,
of the CLA.6
as a denial of their request," plaintiffs on 20
On 14 May the CIA responded to Holtz'
November 1975 appealed that denial. On
Letter, advising her that the documents she
26 November 1975 the CIA offered to send
tought were congressional materials which
plaintiffs copies of five previously published
would be available in the Library of Con-
hearings and reports, even though these
gress or the Government Printing Office.
documents were "generally available in the
On 20 May 1975 Holtz wrote the Agency a
Library of Congress and various depository
second letter, stating her belief that hear-
Ings had been held on the bills she cited for
libraries." 10 With respect to the Hearing
which no transcripts were available in the
Transcript, however, the CIA reiterated its
Library of Congress, and requesting access
position that the Transcript was a "legisla-
tive document under the control of the
to records of these hearings and to "any
-House, Senate or Conference Reports, be-
House of Representatives" which was "clas-
sides those available in public libraries, that
sified 'Secret" and to which FOIA did not
more fully explain the basis for the Com-
apply.¹¹
mittees' actions on these bills."
On 16 December 1975 Goland and Skid-
The Agency responded on 23 June 1975,
more wrote the CIA to "elaborate on the
of
informing Holtz that a search of its records
basis of [their] appeal," asserting that the
Go-
Ind revealed that it possessed one document
Agency's letter of 26 November failed to
ments
relating to the legislative history of the
make clear whether the Transcript and the
(CIA)
CLA's organic statutes which was not pub-
five published documents accounted for all
the
Scly available, namely, a stenographic tran-
the material they had requested. 12 In addi-
they
script of Hearings held before the House
tion, plaintiffs expanded the scope of their
CIA's
Committee on Expenditures in the Execu-
request to embrace not only the reports and
the
live Departments on 27 June 1947 (herein-
hearings they had sought originally, but
in
ad-
after "Hearing Transcript"). The Agency
also any "materials which may have been
ossess.
stated, however, that the Hearing Tran-
the basis for testimony at hearings" or "ma-
judg-
script had been classified "Secret" by Con-
terials used by or submitted by the CIA or
ffirm.
gress and could be declassified only by that
other Executive Branch sources which are
body; it suggested that Holtz request de-
included in [unpublished] reports" on the
classification and release of the document
cited bills." When the CIA failed to re-
elabo-
from the House of Representatives. There
spond to this supplemental appeal within 20
Sara
5. S. 2688, 80th Cong., 2d Sess. (1948); H.R.
CIA.
istrative remedies if the agency fails to comply
5871, 80th Cong., 2d Sess. (1948).
with this time limit.
rning
Se-
L Joint Appendix (J.A.) 12.
10. J.A. 22. These five documents (65 pages in
1949,4
2 ,S.A. 14-15.
all) were sent to plaintiffs on 12 January 1976.
J.A. 78.
Stat.
a J.A. 18.
403a-
11. J.A. 22.
a Under 5 U.S.C. § 552(a)(6)(A)(i) (1976), an
agency must to an FOIA request with-
12. J.A. 23-24.
requester is deemed to have exhausted admin-
requester is deemed , the ten working deemed under $ 552(a)(6)(C), a
13. J.A. 24, 25.
344
607 FEDERAL REPORTER, 2d SERIES
working days,14 plaintiffs filed suit on 28 the deleted portions of the Hillenkoetter
January 1976.
Statement were properly withheld under
On 10 March 1976 the CIA notified plain-
FOIA Exemption 3, relating to matters
tiffs' counsel that it had identified two ad-
"specifically exempted from disclosure by
ditional documents responsive to plaintiffs'
statute;" 19 that both the Transcript and the
FOIA request which "had not previously
deleted portions of the Hillenkoetter State-
been located." 15 The first document was
ment were properly withheld under FOI
1
entitled "Statement of Lt. Gen. Hoyt S.
Exemption 1, relating to matters "specifi-
Vandenberg, Director of Central Intelli-
cally authorized under criteria established
-
gence," delivered before the Senate Armed
by an Executive Order to be kept secret in.
(
Services Committee on 29 April 1947. This
the interest of national defense or foreign
,
document was released to plaintiffs in full.
policy;" 20 that the CIA's search had been
The second document was entitled "State-
complete and there existed no other respon-
9
ment of the Director of Central Intelligence
sive documents; and that plaintiffs lacked
o
[Hillenkoetter] Before the House Armed
standing to challenge the CIA's definition
2
Services Committee [on] 8 April 1948"
of "agency records" inasmuch as the Agen-
(hereinafter "Hillenkoetter Statement").
cy had not relied on that definition in pro-
2
This document was released to plaintiffs
cessing their FOIA request. Plaintiffs re-
with certain portions (about 20% of the
sponded to the motion principally on the
total) deleted; the Agency explained that
grounds that discovery was needed to re-
the deleted material was exempt from dis-
solve disputed issues of fact.
25
closure under FOIA.
Judge Hart granted the CIA's motion for
26
summary judgment on 26 May 1976.21 He
II. COURSE OF THE LITIGATION
found that the Hearing Transcript was a
27
The complaint sought an injunction di-
congressional document outside the ambit
recting the CIA to make available for copy-
of FOIA, that the deleted portions of the
ing all "records requested in plaintiffs'
Hillenkoetter Statement were properly
letter" of 20 October 1975,¹⁰ a
withheld under FOIA Exemption 1, and
-
declaratory judgment holding the CIA's
that no further discovery was justified since
-
allegedly restrictive definition of "agency
the CIA "made a full search in good
28.
records" invalid, and an award of attor-
faith." Judge Hart made no findings
neys' fees. On 10 March 1976 plaintiffs filed
about plaintiffs' standing to challenge the
29.
interrogatories, a request for production of
CIA's definition of agency records or about
30.
documents, and a notice of deposition to the
their request for attorneys' fees. We con-
4
CIA. Rather than submit to discovery, the
sider these issues in turn.
V
CIA on 5 April 1976 filed a motion for
o
2
summary judgment based on affidavits.
III. ANALYSIS
P
The Agency contended that the Hearing
V
Transcript was not an "agency record" but
A. The Hearing Transcript.
t]
rather a congressional document not subject
[1] The FOIA requires that an agency
t)
'r
to FOIA; 18 that both the Transcript and
make "agency records" available to the
m
St
14. See 5 U.S.C. $ 552(a)(6)(A)(ii) & (C) (1976).
19. 5 U.S.C. § 552(b)(3) (1976).
pr
pl
15. J.A. 129.
20. 5 U.S.C. § 552(b)(1) (1976). These docu-
tr
ments were classified "Secret" under Executive
16. J.A. 9.
ag
Order No. 11652, 3 C.F.R. 678 (1971-75 Compl-
C
lation).
17. 32 C.F.R. § 1900.3(g) (1976). The definition
"I
has recently been amended. See 42 Fed.Reg.
po
24,049 (12 May 1977) (codified at 32 C.F.R.
21. Judge Hart's decision, rendered from the
G
§ 1900.3(g) (1977)).
bench, is printed at J.A. 187-90.
Su
gr
18. Congress is not an "agency" under FOIA.
22.
J.A.
190.
as
See 5 U.S.C. § 551(1)(A) (1976).
va
GOLAND V. CENTRAL INTELLIGENCE AGENCY
345
Cite as 607 F.2d 339 (1978)
public upon reasonable request.2 The Act
of this case." The district court found that
koetter
under
(does not define "records" or "agency rec-
the Hearing Transcript was "released to the
matters
ords." Plaintiffs argue that since the
CIA for limited purposes as a reference
by
CIA is an "agency" its possession of the
document only" and that it "remain[ed]
and
the
Hearing Transcript, without more, renders
within the control of Congress; 28 the
State-
that document an "agency record" subject
court concluded that the Transcript was in
to disclosure absent specific exemption.2
FOIA
consequence a "Congressional document,"
The CIA argues that possession is not
"specifi-
and not an "agency record" within the
enough; it points out that "agency," as
ablished
meaning of FOIA. We agree.
defined by the Administrative Procedure
in
Act, "does not include (A) the Congress
[2] At the outset, we reject plaintiffs'
foreign
and that the Hearing Tran-
argument that an agency's possession of a
been
script, regardless of whether it is a "rec-
document per se dictates that document's
respon-
ord," is not an "agency record" on the facts
status as an "agency record." 30 We base
lacked
efinition
23. 5 U.S.C. $ 552(a)(3) & (4)(B) (1976).
tains information regarding "basic elements of
Agen-
[the CIA's] intelligence methodology" and de-
24. See U. S. Dept. of Justice, Attorney Gener-
tails of the CIA's "structure and disposition of
in
pro-
al's Memorandum on the Public Information
functions." Affidavit of CIA Legislative Coun-
tiffs
re-
Section of the Administrative Procedure Act 23
sel George L. Cary, J.A. 80 [hereinafter "Cary
on
the
(1967) [hereïnafter Attorney General's FOIA
Affidavit"]. The sole result of the Hearing
Memorandum].
Transcript's being deemed an "agency record"
to
re-
under s 3301 by virtue of its receipt by the CIA
25. Brief of Appellants at 40; J.A. 24#
is that the Transcript could not thereafter be
for
26. 5 U.S.C. $ 551(1)(A) (1976).
destroyed except in conformity with the proce-
dure Congress prescribed-a result plainly har-
76.11
He
27. The CIA also argues that if the Hearing
monious with Congress' objectives. See 44
was
a
Transcript were an agency record for purposes
U.S.C. § 3314 (1970). Congress' objectives in
he
ambit
of 552(a)(3), it would be exempt from disclo-
the FOIA, of course, were rather different. In
of
the
sure under FOIA Exemptions 1 and 3. See p.
the interests of secrecy, Congress exempted
itself from the Act's disclosure requirements;
properly
1 supra. Since we hold that the Hearing Tran-
of - U.S.App.D.C., p. 344 of 607 F.2d
yet the result of the Hearing Transcript's being
1,
and
script is a Congressional document, we do not
deemed an "agency record" under § 552(a)(3)
since
consider these arguments.
by virtue of its receipt by the CIA is that the
Transcript's release could be required, regard-
in
good
28. J.A. 189.
less of Congress' wishes, unless the CIA could
findings
prove a specific exemption. Given this differ-
the
29. Id.
ence in result, we doubt Congress would agree
lenge
or
about
that an "agency record" under 44 U.S.C. & 3301
x In support of this argument, plaintiffs cite
is an "agency record" under 5 U.S.C.
We
con-
44 U.S.C.A. § 3301 (West Supp.1977), an earlier
& 552(a)(3). Indeed, the two tities define
version of which is quoted in the Attorney
"agency" differently. Compare 5 U.S.C.
General's FOIA Memorandum, supra note 24 at
s 551(1)(A) & (B) (1976) ("agency" excludes
23. Section 3301 defines "records" for pur-
Congress and the federal courts) with 44 U.S.
poses of the management, disposal, and archi-
C.A. & 2901(13) (West Supp. cross-refer-
val preservation of Government documents by
ring to 40 U.S.C. s 472(b) (1970) ("agency"
the Administrator of General Services; it states
includes not only executive agencies, but also
agency
that "[a]s used in [chapter 33 of 44 U.S.C.].
"any establishment in the legislative or judicial
the
'records' includes all
papers
branch," with exceptions). Congress, in any
to
made or received by an agency of the United
event, has had ample opportunities to make the
ACTS
States Government
appropriate for
§ 3301 definition of "records" applicable in
preservation by that agency
(em-
§ 552(a)(3) of FOIA, but has never done so. Cf.
these
docu-
phasis added). This definition is hardly con-
44 U.S.C.A. § 2906(a)(3) (West Supp.1977)
Executive
trolling here. In enacting legislation on man-
(stating that under certain circumstances "rec-
Compt-
agement and disposal of Government records,
ords" under $ 3301 shall be deemed records for
Congress was concerned with preserving an
purposes of 5 U.S.C. § 552a). One recent com-
"[a]ccurate and complete documentation of the
mentator has stated that $ 3301, although it
policies and transactions of the Federal
the
contains the "only statutory definition of 'rec-
from
Government." 44 U.S.C.A. § 2902(1) (West
ord,'" is "an inappropriate answer to the defi-
Supp.1977). With this objective in mind, Con-
nitional issue." J.T. O'Reilly, Federal Informa-
gress might well regard the Hearing Transcript
tion Disclosure, П 5.03 n.l (1977).
as a "record
appropriate for preser-
Plaintiffs point out that the $ 3301 definition
Evation" by the CIA, since the Transcript con-
of records was quoted in the Attorney Gener-
346
607 FEDERAL REPORTER, 2d SERIES
our conclusion both on precedent and on
thority to keep its records secret, authority
document,
policy. The precedent is the Tenth Circuit's
rooted in the Constitution," longstanding
not. Whe
opinion in Cook V. Willingham," the only
practice," and current congressional rules.
document
decision cited to us or discovered by our
Yet Congress exercises oversight authority
rather, de
own research that is squarely on point. In
over the various federal agencies, and thus
facts of th
Cook, a prisoner sought a copy of his pre-
has an undoubted interest in exchanging
from the
sentence investigation report under FOIA.
documents with those agencies to facilitate
property s
Although the document was physically in
their proper functioning in accordance with
the agency
the possession of the warden of a United
Congress' originating intent. If plaintiffs'
sides.
States penitentiary, the Tenth Circuit held
argument were accepted, Congress would
The doc
the place of possession not controlling.
be forced either to surrender its constity
static repr
Noting that FOIA "does not apply to 'the
tional prerogative of maintaining secrecy,
script of a
courts of the United States,' 32 it conclud-
for
or to suffer an impairment of its oversight
Committee
ed that the presentence report, "made for
role. We decline to confront Congress with
tive Depar
cc
the use of the sentencing court," thereafter
this dilemma absent a more convincing
"H.R. 231
T
"remains in the exclusive control of that
showing of self-abnegating congressional
Forces." I
court despite any joint utility it may even-
intent. It may be assumed that plaintiffs
ecutive Ses
are
tually serve." 33 In consequence, the judi-
could not easily win release of the Hearing
ness, the 0
cial document was "not an agency report
Transcript from the House of Represents
and typist
and [was] therefore not available to the
tives; we will not permit them to do indi-
tains discus
public" under FOIA. Since the FOIA's
rectly what they cannot do directly because
gence met
exemptions for Congress and the federal
of the fortuity of the Transcript's location
and of fri
courts are in pari materia,³⁵ Cook is firm
[3] For reasons both of precedent and
well as de
support for the conclusion that the Hearing
policy, then, we believe that plaintiffs' lit."
structure
Transcript, a congressional document, is not
mus test must be rejected. An agency's
When rece
"an agency record" here.
possession of a document, standing alone,
bore the t
This conclusion likewise finds firm sup-
no more dictates that it is an "agency real
its interior
port in policy. Congress has undoubted au-
ord" than the congressional origins of a
pears to h
the Transc
al's FOIA Memorandum supra note 24 at 23.
the Court for which it was made, and is there-
We do not see how this helps plaintiffs' case.
fore not capable of release under FOIA," citing
40. Cary A
The Attorney General noted that the FOIA did
Cook).
not define "records," then quoted the only
41. J.A. 80
available statutory definition of the term for
35. See 5 U.S.C. § 551(1)(A) & (B) (1976).
and dispo
what it was worth. He would have been re-
Transcript
miss in not doing so. Yet his citation of the
36. U.S.Const. art. 1, $ 5: "Each House shall
closure of
definition does not give it any greater extrapo-
keep a Journal of its Proceedings, and from
relations
lative force than it inherently possesses. The
the CIA it
time to time publish the same, excepting such 1
Attorney General surely did not focus on the
the Trans
Parts as may in their Judgment require Secrecy
words "or received by," which plaintiffs itali-
Order 116
cize and which are relevant to our case. In-
consider V
deed, the Memorandum elsewhere suggests
See note
37. See Nixon V. Sirica, 159 U.S.App.D.C. 58,
that an agency's possession of a document does
130-31, 487 F.2d 700, 772-73 (1973) (Wilkey,
not per se render the document an "agency
42. Cary A
record" which the possessing agency must re-
J., dissenting).
43. Id. at
lease. See note 46 infra.
38. E. 8., H.R. Rule XI(2)(k)(7), reprinted in H.R.
31. 400 F.2d 885 (10th Cir. 1968) (per curiam),
44. Cf. S.F
Doc. No. 416, 93d Cong., 2 Sess. 427 (1975):
followed in United States V. Dingle, 546 F.2d
Annual R
"No evidence or testimony taken in executive
1378, 1381 (10th Cir. 1976).
of the Co
session may be released or used in public ses-
Departme
32. 400 F.2d at 885, citing 5 U.S.C. § 551(1)(B)
sions without the consent of the committee."
were
(1976).
tional ser
39. See Letter from Deputy Att'y Gen. Harold R
was dete
33. Id
Tyler, Jr. to Hon. Belia S. Abzug, 19 Feb. 1976,
detriment
34. Id. at 886. See United Broadcasting Co., 58
quoted in J.A. 60 (Justice Dept. declined to
F.C.C.2d 1243, 1245 (1975) (FCC withheld pro-
release confidential House report lest "commu-"
45. Plaint
bationary report because "probationary report,
nications and consultations between coequal
current I
like a presentencing report, properly belongs to
branches" of government be stifled).
governin
GOLAND V. CENTRAL INTELLIGENCE AGENCY
347
Cite as 607 F.2d 339 (1978)
document, standing alone, dictate that it is
ten mark "Secret" appears again on the
ity
not. Whether a congressionally generated
first page of the text of the Transcript.
38
document has become an agency record,
The CIA retains a copy of the Transcript
ity
Frather, depends on whether under all the
for internal reference purposes only, to be
facts of the case the document has passed
used in conjunction with legislation con-
us
ing
from the control of Congress and become
cerning the Agency and its operations.43
ate
property subject to the free disposition of
Given these facts, we conclude that the
ith
the agency with which the document re-
Hearing Transcript remains under the con-
lis
ades.
trol of and continues to be the property of
uld
The document at issue here is a photo-
the House of Representatives. We base our
tu-
static reproduction of a stenographic tran-
conclusion both on the circumstances at-
cy,
script of a hearing held before the House
tending the document's generation and the
ght
Committee on Expenditures in the Execu-
conditions attached to its possession by the
ith
tive Departments on 27 June 1947, entitled
CIA. The facts that the Committee met in
ing
"H.R. 2319-Unification of the Armed
executive session 44 and that the Transcript
nal
Forces." The Committee was sitting in Ex-
was denominated "Secret" plainly evidence
iffs
ecutive Session. As the first order of busi-
a Congressional intent to maintain Congres-
ing
ness, the Chairman swore the stenographer
sional control over the document's confiden-
ta-
and typist to secrecy.⁴⁰ The transcript con-
tiality.45 The fact that the CIA retains the
ndi-
tains discussions of basic elements of intelli-
Transcript solely for internal reference pur-
use
gence methodology, both of this country
poses indicates that the document is in no
ion.
and of friendly foreign governments, as
meaningful sense the property of the CIA;
and
well as detailed discussions of the CIA's
the Agency is not free to dispose of the
lit-
structure and disposition of functions.41
Transcript as it wills, but holds the docu-
cy's
When received by the CIA, the Transcript
ment, as it were, as a "trustee" for Con-
one,
"bore the typewritten marking "Secret" on
gress. Under these circumstances, the deci-
rec-
its interior cover page; this marking ap-
sion to make the transcript public should be
a
pears to have been appended at the time
made by the originating body, not by the
the Transcript was made.42 The typewrit-
recipient agency."
ting
40. Cary Affidavit, supra note 30, J.A. 80.
tive session, was not enacted until 1955. Brief
at 41. See H.R.Doc. No. 416, supra note 38 at
41. J.A. 80-81. Because the CIA methodology
427. It is clear, however, that the Rule simply
and disposition of functions described in the
formalized longstanding practice. Cf., e. 8.,
Transcript are still operable, and because dis-
S.Rep.No.5, supra note 44 at 3-4: "The sub-
hall
closure of the information could damage U.S.
committee calls attention to the following rules
rom
relations with friendly foreign governments,
of procedure which it adopted and which it has
uch
the CIA itself separately classified portions of
uniformly followed:
(5) All testimony
ecy
the Transcript "Secret" pursuant to Executive
Order 11652. See note 20 supra. We do not
taken in executive hearings shall be secret and
will not be released or used in public hearings
consider whether this classification was proper.
without the approval of a majority of the sub-
58,
See note 27 supra.
committee." Even without the benefit of a
key,
42. Cary Affidavit, supra note 30, J.A. 80.
general Rule, moreover, the transcript on its
face manifests the indicia of Congress' Intent to
43. Id. at 79-80.
maintain secrecy. Since it is Congress' intent
H.R.
to maintain secrecy, and not Congress' con-
75):
44. Cf. S.Rep.No.5, 81st Cong., 1st Sess. ("First
formance with the procedural nicetles of classi-
Live
Annual Report of the Investigations Subcomm.
fication, that makes the Transcript a "Congres-
of the Comm. on Expenditures in the Executive
sional document," plaintiffs' arguments that
&
Departments") 3 (1949): "Executive hearings
discovery is required as to the identity of the
were
utilized in cases involving na-
classifier, the date on which the document was
tional security and in other instances when it
classified, etc., are irrelevant in reaching a deci-
HR.
was determined that public disclosure might be
sion here.
76,
detrimental to the public interest."
to
46. Cf. Attorney General's FOIA Memorandum,
mu-
45. Plaintiffs point out that the predecessor of
supra note 24 at 24:
ual
current House Rule XI(2)(k)(7), supra note 38,
Where a record is requested which is of con-
governing secrecy of testimony taken in execu-
cern to more than one agency, the request
348
607 FEDERAL REPORTER, 2d SERIES
[4, 5] We hold, therefore, that the Hear-
B. The Hillenkoetter Statement.
ing Transcript is not an "agency record"
The Hillenkoetter Statement is conceded-
but a congressional document to which
ly an "agency record." Although the entire
FOIA does not apply.47 We reach this con-
113-page document was originally classified
clusion because we believe that on all the
"Secret," the CIA has declassified approxi-
facts of the case Congress' intent to retain
mately 80% of it and released those portions
control of the document is clear. Other
to plaintiffs. The Agency contends that
cases will arise where this intent is less
the deleted portions are exempt from disclo-
plain. We leave those cases for another
sure under FOIA Exemptions 1" and &
day.48
The district court held this material ex-
should be referred to the agency whose inter-
U.S.App.D.C., at 361 of 607 F.2d. Since the
est in the record is paramount, and that agen-
CIA has never contended that the Hillenkoetter
cy should make the decision to disclose or
Statement is a Congressional document-since.
withhold
Where a record request-
indeed, the CIA has acted inconsistently with
ed from an agency is the exclusive concern of
any such contention by declassifying and re-
another agency, the request should be re-
leasing 80% of the document-we see no need
ferred to that other agency.
to consider this question. We might note, how-
This rule was followed in Friendly Broadcasting
ever, that between the Hillenkoetter Statement
Co., 55 F.C.C.2d 775, 775-76 (1975) (where FBI
and the Hearing Transcript substantial differ-
Reports were loaned to FCC solely for internal
reference purposes, Reports were "property of
ences lie. The former is a statement by a CIA
official prepared by the CIA; we do not know
the Federal Bureau of Investigation" and FBI,
"as the originator of the Reports,
is
the circumstances of its delivery in Congress,
the agency to which the request should be
and it was classified "Secret," not by Congress,
addressed" under FOIA).
but by the CIA. The latter is a transcript of
colloquy between Congressmen and CIA wit-
47. Plaintiffs argue that even if the Transcript
nesses; it was created in Congress under dr-
as a whole is a "Congressional document,"
cumstances manifesting a plain Congressional
those portions originating with the CIA are
desire for secrecy, and it initially was labeled
producible as "reasonably segregable por-
"Secret," not by the CIA, but by Congress."
tion[s]' " with the "comments of members of
Congress
deleted if necessary as
These distinctions are not, as our dissenting
colleague says, a matter of paper and ink. The
'Congressional materials." Brief at 42 & n.15,
citing 5 U.S.C. § 552(b) (last sentence) (1976).
Transcript originated in Congress and remains
This argument is frivolous. Congress met in
a congressional document because it bears
executive session, and marked the Transcript
clear indicia of a congressional purpose to en-
"Secret," not only. to protect its members'
sure secrecy; the Statement originated in the
questions, but to protect its witnesses' an-
CIA and bears no indicia of any congressional
swers. The cited provision from § 552(b), in
purpose to ensure secrecy. It is these. indicia
any event, requires segregation and disclosure
of Congress' continuing control that are dispos-
of non-exempt portions of agency records;
itive of a document's "congressional" status.
since we hold that the Hearing Transcript is not
The dissent argues that '[c]ontrol' in this
an agency record, this provision has no applica-
sense goes to the question whether a document
tion here.
is exempt from disclosure-not to whether it is
an 'agency record." Diss. op. at - of 197
48. In ascertaining whether a record in the pos-
U.S.App.D.C., at 360 of 607 F.2d. This argu-
session of an agency is nonetheless a congres-
ment seems to mean that Congress can exer-
sional document, a court will of course accord
cise "control" over secret documents that leave
due weight to the factors that influence us in
its possession only by enacting FOIA exemp-
this case, including (1) Congress' clear intent to
tions. We disagree. Congress has broad powe
exempt congressional documents from disclo-
ers to keep its documents secret; when Con-
sure under FOIA; (2) Congress' clear preroga-
gress transfers secret documents to an agency,
tive to prevent disclosure of its own confiden-
for a limited purpose and on condition of secre-
tial materials; and (3) the danger of inhibiting
cy, we see no reason to think it thereby waives
the legislative and judicial branches from mak-
its own prerogatives of confidentiality and re-
ing their records available to the executive
branch.
signs itself to the FOIA exemptions which bind
the agency and not it.
The dissent argues that this test, and the
conclusion it produces, prove too much: if the
49. The deleted portions of the Statement were
Hearing Transcript is a Congressional docu-
classified "Secret" pursuant to Executive Order
ment, so also must the Hillenkoetter Statement
11652 "in the interest of national defense or
be, a reductio our colleague evidently views as
foreign policy." See p. - of 197 U.S.App.
ad absurdum. See diss. op. at - of 197
D.C., p. 344 of 607 F.2d & note 20 supra.
GOLAND V. CENTRAL INTELLIGENCE AGENCY
349
Cite as 607 F.2d 339 (1978)
rempt, relying on Exemption 1. We agree,
Agency."
In
Weissman
V.
CIA,
this
but base our holding instead on Exemption
Court squarely held that "both § 403(d)(3)
3, without in any way impugning the cor-
and § 403g are precisely the type of stat-
ed
rectness of Judge Hart's conclusion.
utes comprehended by exemption (b)(3)." 55
G
As originally enacted, FOIA provided
This conclusion derived incontrovertible
ns
that the Act's disclosure requirements "[do]
support from legislative history and was
at
10-
not apply to matters that are-.
(3)
unanimously adopted by other courts.⁵⁷
3.
specifically exempted from disclosure by
In 1976 Congress amended Exemption 3
statute."d Two statutes are relevant to an
in order to "eliminate the gap created in
ex-
Exemption 3 claim by the CIA. A proviso
[FOIA]" by the Supreme Court's decision in
the
to 50 U.S.C. § 403(d)(3) states that "the
FAA Administrator V. Robertson. Rob-
Director of Central Intelligence shall be
ertson held that a statute giving an agency
responsible for protecting intelligence
broad discretion to withhold information "in
re-
sources and methods from unauthorized dis-
the interest of the public" qualified as an
closure." Section 403g of the same title
Exemption 3 statute. Congress amended
provides that, "in order further to imple-
Exemption 3 to provide that information
fer-
ment" this proviso, "the Agency shall be
shall be deemed specifically exempted from
CIA
exempted from
the provisions of
disclosure by statute only if such statute
jany
law which require the publi-
"(A) requires that the matters be withheld
cation or disclosure of the organization,
from the public in such a manner as to
of
functions, names, official titles, salaries, or
leave no discretion on the issue, or (B) es-
wit-
cir-
numbers of personnel employed by the
tablishes particular criteria for withholding
50. Although "inquiries into the applicability of
Cong., 2d Sess. 12 (1974) (Conference Report)
the two exemptions may tend to merge," Phil-
(same), U.S.Code Cong. & Admin.News 1974,
Uppi V. CIA, 178 U.S.App.D.C. 243, 250, 546
p. 6267.
F.2d 1009, 1016 n.14 (1976), Exemption 3 may
The
of course be invoked independently of Exemp-
57. E. 8., Richardson V. Spahr, 416 F.Supp. 752,
tion 1. See Weissman V. CIA, 184 U.S.App.
753 (W.D.Pa.), aff'd, 547 F.2d 1163 (3d Cir.
D.C. 117, 123, 565 F.2d 692, 698 (1977); Marks
1976) (§§ 403(d)(3) & 403g are both Exemption
en-
V. CIA, 426 F.Supp. 708, 710-11 n.5 (D.D.C.
the
3 statutes); Marks V. CIA, 426 F.Supp. 708,
1977), appeal docketed, No. 77-1225 (D.C. Cir.
3 March 1977); J. T. O'Reilly, supra note 30, at
710-11 (D.D.C.1976), appeal docketed, No. 77-
13.07. Whether the deleted portions of the
1225 (D.C. Cir. 3 March 1977) (same); Baker V.
Hillenkoetter Statement were properly with-
CIA, 425 F.Supp. 633, 635 (D.D.C.1977), appeal
held is perhaps more clearly and briefly stated
docketed, No. 77-1228, 188 U.S.App.D.C. 401,
this
under Exemption 3 than under Exemption 1,
580 F.2d 664 (D.C. Cir. 3 March 1977) (same).
hence we reach Judge Hart's conclusion by a
It
is
different path.
58. H.R.Rep.No.94-880, pt. 1, 94th Cong., 2d
197
Sess. 23 (1976), U.S.Code Cong. & Admin.News
52. 5 U.S.C. § 552(b)(3) (1970).
1976, p. 2183, citing 422 U.S. 255, 95 S.Ct.
2140, 45 L.Ed.2d 164 (1975). The revision in
52 National Security Act of 1947, ch. 343, tit. I,
Exemption 3 represented a conforming amend-
$ 102, 61 Stat. 497 (presently codified at 50
U.S.C. $ 403(d)(3) (1970)).
ment to 5 U.S.C. § 552b(c)(3) (1976), part of the
Government in the Sunshine Act, Pub.L. No.
n CIA Act of 1949, ch. 227, § 7, 63 Stat. 211
94-409, § 3(a), 90 Stat. 1241 (1976).
(presently codified at 50 U.S.C. § 403g (1970)).
59. Robertson involved § 1104 of the Federal
st 184 U.S.App.D.C. 117, 565 F.2d 692 (1977).
Aviation Act of 1958, 49 U.S.C. § 1504 (1970),
t
bind
SA, Id at 119, 565 F.2d at 694. See Phillippi V.
which provides in pertinent part: "Whenever
[any person objects to public disclosure of in-
CIA, 178 U.S.App.D.C. 243, 249 n. 19, 546 F.2d
1009, 1015 n.14 (1976).
formation received by the FAA], the Board or
were
Administrator shall order such information
M S.Rep.No.93-854, 93d Cong., 2d Sess. 16
withheld from public disclosure when, in their
or
judgment, a disclosure of such information
Sources and Methods (50
App.
would adversely affect the interests of such
(g))
have been
person and is not required in the interest of the
552(b)(3) inspection under section
public."
"); S.Rep.No.93-1200, 93d
350
607 FEDERAL REPORTER, 2d SERIES
or refers to particular types of matters to
403g unimpaired." Scholarly comments-
[6] I
be withheld." There is nothing on the
tors have reached the same conclusion.
whether
face of amended Exemption 3, or in its
Having decided that § 403(d)(3) and
that rele
legislative history, to suggest that Congress
§ 403g remain qualifying statutes under -1
in its e
in 1976 intended to upset the well-estab-
amended Exemption 3, we must determine
sources :
lished Exemption 3 status of the CIA's pro-
whether the deleted portions of the Hillen-
the "org
tective statutes. Both § 403(d)(3) and
koetter Statement fall within these stat
§ 403g "refer[] to particular types of mat-
utes' protective compass. A court may be"
personne mitted b
ters to be withheld"-namely, information
able to make such a determination on the
L Cary,
respecting intelligence sources and methods.
basis of affidavits, without the need for
koetter S
Rep. Abzug, the amendment's primary
discovery or in camera inspection. Ex-
tions of (
sponsor in the House, explicitly stated on
emption 3 differs from other FOIA exemp-,
ational de
the floor that § 403g was one of the stat-
tions in that its applicability depends less on.
"methods
utes intended to qualify under the new
the detailed factual contents of specific doc.
unique 1
Exemption 3.61 The only courts to consider
uments; the sole issue for decision is the
which "a
the issue have held that the amendment left
existence of a relevant statute and the in-
clusion of withheld material within that
concepts
the Exemption 3 status of §§ 403(d)(3) and
statute's coverage.65
which "t]
ble"; (4)
60. Act of 13 Sept. 1976, Pub.L.No.94-409,
63. See J. T. O'Reilly, supra note 30, at 11 13.07
§ 5(b), 90 Stat. 1247 (presently codified at 5
("mandatory" nature of CIA statutes "bars dis.
operation
U.S.C. $ 552(b)(3) (1976)). The amendment
closure under either the original or revised ver-
foreign o
became effective 12 March 1977, 180 days after
sions of exemption (b)(3)''); Note, The Effect of
tain intell
its enactment. See Pub.L. No. 94-409, § 6.
the 1976 Amendment to Exemption Three of
foreign g
the Freedom of Information Act, 76 ColumL-
not been
61. 122 Cong. Rec. H9260 (daily ed. 31 Aug.
Rev. 1029, 1044 n.91 (1976) (§ 403g qualifies
1976):
under revised Exemption 3 because it specifies-
nonconclu
I have been asked whether 50 U.S.C. [§]
the "particular types of matters to be with
the delete
403g, a statute relating to CIA exemption
held").
from laws such as the Sunshine Act and the
tions" and
Freedom of Information Act, comes within
64. Congress has instructed the courts to accord
nel. We
the third exemption as recommended by the
"substantial weight" to agency affidavits in na-
conference. I have examined section 403g
tional security cases. S.Rep.No.93-1200, 93d
portions
and believe that it does come within the ex-
Cong., 2d Sess. 12 (1974) (Conference Report):
emption.
120 Cong.Rec. 36,870 (1974) (remarks of Sen.
In Vaugh
Muskie); Weissman V. CIA, 184 U.S.App.D.C.
F.2d 820
The legislative history cites, by way of exam-
S.Ct. 156
ple, in addition to the statute involved in Rob-
117, 122 n.10, 565 F.2d 692, 697 n.10 (1977). A
need of ti
ertson, supra note 59, several statutes that
court has discretion to conduct in camera in-
withheld
would not qualify under amended Exemption 3.
spection under 5 U.S.C. $ 552(a)(4)(B) (1976),
matter,
See H.R.Rep.No.94-880, pt. 1, 94th Cong., 2d
but the legislative history makes clear that in
disclosab
Sess. 23 (1976), citing 18 U.S.C. § 1905 (1970);
camera inspection should be ordered only after
of exemp
S.Rep.No.94-1178, 94th Cong., 2d Sess. 14
an agency has been given "the opportunity to
n.21. In
(1976) (Conference Report), citing 42 U.S.C.
establish by means of testimony or detailed
camera i
§ 1306 (Supp. V 1975). These statutes are of
affidavits that the documents are clearly ex-
segregab
the oceanic variety involved in Robertson and
empt from disclosure." S.Rep.No.93-1200, 93d
bly dimit
are in marked contrast to the CIA statutes
Cong., 2d Sess. 9 (1974) (Conference Report),
are by no
involved here. 42 U.S.C. § 1306 provides that
U.S.Code Cong. & Admin.News 1974, p. 6287.
the Age
no disclosure of any information obtained at
The description contained in the affidavits
leased &
any time by or from the Departments of HEW
be sufficiently detailed to show that the con-
plaintiffs
or Labor shall be made except as relevant regu-
tested matter "logically falls into the category
lations prescribe. 18 U.S.C. § 1905 prohibits
of the exemption indicated." Weissman, 184
66. See V
"[d]isclosure of confidential information gener-
U.S.App.D.C. at 122, 565 F.2d at 697.
346, 484
ally" by any officer or employee of the United
U.S. 977
States "in any manner or to any extent not
65. See EPA V. Mink, 410 U.S. 73, 95 n., 93
67. Sectic
authorized by law."
S.Ct. 827, 840, 35 L.Ed.2d 119 (1973) (Stewart,
Agency
62. Fonda V. CIA, 434 F.Supp. 498, 503-04 & n.6
J., concurring) (under Exemption 3 "the only
at all abi
(D.D.C.1977), appeal docketed, No. 77-1989
'matter' to be determined in a district court's de
178 U.S.
(D.C. Cir. 4 Nov. 1977); Hayden V. CIA, No.
novo inquiry is the factual existence of [a rele-
1015 n)
76-284, slip op. at 3-4 (D.D.C. 15 Apr. 1977),
vant] statute, regardless of how unwise, self-
"persom
appeal docketed, No. 77-1894 (D.C. Cir. 30
protective, or inadvertent the enactment might
disclosur
Sept. 1977).
be"); J. T. O'Reilly, supra note 30, at 1 13.07.
But see
GOLAND V. CENTRAL INTELLIGENCE AGENCY
351
Cite as 607 F.2d 339 (1978)
enta-
[6] In this case, the issue for decision is
were properly withheld under FOIA Ex-
ion.º
"whether the CIA has shown by affidavit
emption 3.
and
that release of the Hillenkoetter Statement
The dissent would deny summary judg-
under
in its entirety would reveal "intelligence
ment on the Exemption 3 status of the
mine
sources and methods," e. g., by revealing
Hillenkoetter Statement because the CIA
lillen-
the "organization" or "functions" of CIA
did not furnish a Vaughn v. Rosen index of
stat-
personnel. According to an affidavit sub-
that document. This argument exalts
ay be
mitted by CIA Legislative Counsel George
form over substance. Vaughn involved a
n the
L Cary, the deleted portions of the Hillen-
request for numerous documents running to
d for
koetter Statement contain detailed descrip-
"mäny hundreds of pages," and the Govern-
Ex-
tions of (1) "intelligence collection and oper-
ment made a blanket claim that "the docu-
xemp-
ational devices
still utilized"; (2)
ments, as a whole, [were] exempt under
less on
"methods of procurement and supply
three distinct exemptions." We found it
ic doc-
unique to the Intelligence Community"
"preposterous to contend that all of the
is the
which "are currently utilized"; (3) "basic
information [was] equally exempt under all
the in-
concepts of intelligence methodology" of
of the alleged exemptions," and found "an
that
which "the essential elements remain via-
adequate indexing system" necessary owing
ble"; (4) "specific clandestine intelligence
to our "inability to determine which exemp-
11 13.07
operations," including the "names [of] the
tions appl[ied] to what portions of the infor-
ars dis-
foreign countries involved"; and (5) "cer-
mation." The present case involves 23
sed ver-
Effect of
tain intelligence methodologies of aTriendly
pages of deletions from one document. The
Three of
foreign government." This affidavit has
CIA's affidavit lists the deletions; provides
olum.L
not been challenged. It demonstrates, in
a "relatively detailed analysis" of the ma-
qualifies
monconclusory and detailed fashion, that
terial deleted; makes clear which exemp-
specifies
with-
the deleted material describes "intelligence
tions are claimed for the deletions (Exemp-
methods," including the "func-
tions 1 & 3); and explains why the deleted
"tions" and "organization" of CIA person-
material fits within the exemptions claimed
accord
nel." We hold, therefore, that the deleted
(i. e., how the deletions relate to "national
is in na-
200. 93d
portions of the Hillenkoetter Statement
security" and "intelligence sources and
Report):
in Vaughn V. Rosen, 157 U.S.App.D.C. 340, 484
(D.D.C.1977), appeal pending, No. 77-1228
of Sen.
F.2d 820 (1973), cert. denied, 415 U.S. 977, 94
(D.C. Cir. 1978) (§ 403g personnel matter ex-
App.D.C.
S.Ct. 1564, 39 L.Ed.2d 873 (1974), we noted the
empt under Exemption 3 even absent proof
977). A
need of techniques to test for the presence in a
that disclosure would in fact compromise intel-
mera in-
withheld document of segregable, nonexempt
(1976).
ligence sources and methods).
matter, lest an agency be able to "sweep{]
that in
disclosable material under a blanket allegation
nly after
68. See diss. op. at
&
of 197
of exemption." Id., at 347 n.21, 484 F.2d at 827
tunity to
U.S.App.D.C., at 356-358 & 364-365 of 607
n21. In this case, the need for discovery or in
detailed
F.2d, citing 157 U.S.App.D.C. 340, 346-48,
camera inspection to test for the presence of
early ex-
484 F.2d 820, 826-28 (1973), cert. denied, 415
segregable, non-exempt material is considera-
1200, 93d
bly diminished: the CIA's claims of exemption
U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
Report).
are by no means "blanket" or "sweeping," and
p. 6287.
the Agency has already segregated and re-
69. See 157 U.S.App.D.C. at 345, 347, 484 F.2d
vits must
leased 80% of the Hillenkoetter Statement to
at 825, 827.
the con-
plaintiffs.
man, category 184
70. Id. at 345-348, 347 n.22, 484 F.2d at 827-28,
See Vaughn V. Rosen, 157 U.S.App.D.C. 340,
827 n.22.
x346, 484 F.2d 820, 826 (1973), cert. denied, 415
U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
71. Id. at 346, 484 F.2d at 826. See Maroscia V.
95 n.° 93
87, Section 403g does not of course license the
Levi, 569 F.2d 1000, 1003 (7th Cir. 1977) (per
"the (Stewart. only
Agency "to refuse to provide any information
curiam) (upholding summary judgment on Ex-
at all about anything it does." Phillippi V. CIA,
emption 1 status of CIA document, without in
court's de
178 243, 249 n.14, 546 F.2d 1009,
camera inspection, on basis of affidavit describ-
of [a rele- self.
this case, disclosure of the
ing document "In some detail, indicating the
wise, ent might
at issue would lead to
circumstances and the sensitivity of the infor-
at 11 13.07.
But disclosure of intelligence sources and methods.
mation," and explaining "[t]he potential harm
see Baker V. CIA, 425 F.Supp. 633, 635-36
resulting from disclosure of [the] document").
352
607 FEDERAL REPORTER, 2d SERIES
methods"). The CIA's justifications, we
fending agency must prove that each docu-,"
fe
think, could not have been much more de-
ment that falls within the class requested
du
tailed without "compromis[ing] the secret
either has been produced, is unidentifiable.
in
nature of the information." Although
or is wholly exempt from the Act's inspec-
pa
the Agency did not tender its analysis in
tion requirements." In determining
m
the form of an "index," it satisfied the
whether an agency has met this burden of:
p
"detailed justification," "specificity," and
proof, the trial judge may rely on affids."
go
"separation" requirements whose satisfac-
se
vits. Congress has instructed the courts to"
tion the Vaughn index was meant to en-
or
accord "substantial weight" to agency affi-
sure. Although we do not retreat in the
davits in national security cases,⁷⁶ and these
g
least from our belief that an index is of
ci
affidavits are equally trustworthy when
great assistance to requesters and courts in
C
appropriate cases, common sense suggests
they aver that all documents have been
ly
that an index was unnecessary for the 23
produced or are unidentifiable as when they
al
pages that were so specifically described
aver that identified documents are exempt.
qi
and justified here.
The agency's affidavits, naturally, must be
is
"relatively detailed" and nonconclusory n
m
C. The Thoroughness of the CIA's
and must be submitted in good faith. But
de
Search for Responsive Documents
if these requirements are met, the district
"I
The CIA asserts that exhaustive searches
judge has discretion to forgo discovery and
W
of its files have succeeded in locating eight,
award summary judgment on the basis of
pl
affidavits.⁷⁸
no
and only eight, documents that are respon-
or
sive to plaintiffs' FOIA request. Plain-
In support of its motion for summary
tiffs contend that discovery is needed to
judgment, the CIA submitted affidavits ex-
g
or
test whether the CIA's search was com-
ecuted by Gene F. Wilson, the Agency's
be
plete. The district court awarded summary
Information and Privacy Coordinator. Wil-
th
judgment in favor of the CIA, finding that
son stated that in response to plaintiffs'
in
"the CIA ha[d] made a full search in good
initial request for "legislative history" be
su
faith and that no further discovery [was]
"caused a search to be made for all printed
ta
justified." We agree.
hearings, transcripts of hearings, [and]
W
[7-9] In order to prevail on an FOIA
printed reports issued by Committees of the
to
motion for summary judgment, "the de-
House, Committees of the Senate or Con-
th
72. Vaughn V. Rosen, 157 U.S.App.D.C. at 346-
78. See Nolen V. Rumsfeld, 535 F.2d 890, 891-92
47, 484 F.2d at 826-27.
(5th Cir. 1976) (granting summary judgment
or
upon agency's representations "in candor and
73. These documents are the five published
or
in good faith" that all responsive documents
hearings (released in full). the Vandenberg
Statement (released in full), the Hillenkoetter
were made available to plaintiff); Association
se
of Nat'l Advertisers, Inc. V. FTC, 38 Ad.L.2d
da
Statement (withheld in part), and the Hearing
Transcript (withheld in full). See pp.
643, 644 (D.D.C. 1 April 1976) (where record
of 197 U.S.App.D.C., pp. 343-344 of 607 F.2d
indicates that agency search was "reasonably
79
supra.
thorough," discovery may be limited by court;
80
to justify discovery where FTC "has already
74. J.A. 190.
stated under oath that the search was Commis-
sion-wide and complete,
[p]laintiff
75. National Cable Television Ass'n, Inc. V. FCC,
81
must demonstrate some substantial discrepan-
156 U.S.App.D.C. 91, 94, 479 F.2d 183, 186
(1973).
cy between the defendants' actions and words
82
"); Exxon Corp. V. FTC, 384 F.Supp.
76. S.Rep.No.93-1200, 93d Cong., 2d Sess. 12
755, 759-60 (D.D.C.1974), remanded, 174 U.S.
83
(1974) (Conference Report); 120 Cong.Rec. 36,-
App.D.C. 77, 527 F.2d 1386 (1976), dismissed,
870 (1974) (remarks of Sen. Muskie). See EPA
No. 73-1928 (D.D.C. 28 Feb. 1977) (limiting
84
V. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35
discovery where affidavits demonstrated ade-
L.Ed.2d 119 (1973).
quacy of search).
85
77. Vaughn V. Rosen, 157 U.S.App.D.C. 340,
86
346, 484 F.2d 820, 826 (1973), cert. denied, 415
U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
GOLAND V. CENTRAL INTELLIGENCE AGENCY
353
Cite as 607 F.2d 339 (1978)
ference Committees." This search pro-
searches undertaken, and a detailed expla-
duced five published reports and the Hear-
nation of why further searches would be
ing Transcript. Subsequently, plaintiffs ex-
unreasonably burdensome. Plaintiffs ar-
panded their request to include all docu-
gue, however, that even if Wilson's affida-
ments "which may have been used to pre-
vits are otherwise sufficient to support
pare for Congressional testimony." Wil-
summary judgment in favor of the CIA,
son then conducted a "further exhaustive
discovery is required here because there is
search" for "copies of prepared testimony
reason to doubt the Agency's good faith.
or statements presented in response to con-
gressional consideration of the legislation"
[10] First, plaintiffs note that hearings
cited by plaintiffs.⁸⁾ In this search, the
occurred on the CIA's enabling statutes for
CIA "interpreted [plaintiffs'] request broad-
which no published transcripts exist, and
ly enough to ensure that [it] would locate
argue that unpublished transcripts of these
all documents within the scope of the re-
hearings, as well as CIA back-up documents
quest," and "searched and reviewed all files
prepared for use at these hearings, "must
which might contain [responsive] docu-
exist." Although appeals to common
ments." This search produced the Van-
sense are not altogether to be condemned,
denberg and Hillenkoetter Statements, but
plaintiffs' argument is unpersuasive here.
"failed to locate any additional records
Even if we assume that the' documents
which could be considered responsive to
plaintiffs posit were created, there is no
plaintiffs' request." Since the CIA has
reason to believe that the documents, thirty
no indices or compendiums identifying rec-
years later, still exist, or, if they exist, that
ords as "preparatory documents for con-
they are in the possession of the CIA.
gressional testimony," any additional rec-
Moreover, even if the documents do exist
ords of this description, if they exist, could
and the CIA does have them, the Agency's
be found only by "a page-by-page search"
good faith would not be impugned unless
through the "84,000 cubic feet of documents
there were some reason to believe that the
in the [CIA] Records Center." Even if
supposed documents could be located with-
such a page-by-page search were under-
out an unreasonably burdensome search. It
taken, it would be "impossible to determine
is well established that an agency is not
which documents, if any, were in fact used
"required to reorganize [its] files in re-
to prepare for congressional testimony on
sponse to [a plaintiff's] request in the form
the legislation cited by plaintiffs."
in which it was made," and that if an
We think that Wilson's sworn affidavits
agency has not previously segregated the
on their face are plainly adequate to dem-
requested class of records production may
onstrate the thoroughness of the CIA's
be required only "where the agency [can]
search for responsive documents. The affi-
identify that material with reasonable ef-
davits give detailed descriptions of the
fort."88 Wilson's affidavits plainly show
7a. J.A. 174.
87. Irons V. Schuyler, 151 U.S.App.D.C. 23, 30,
465 F.2d 608, 615, cert. denied, 409 U.S. 1076,
80. J.A. 106. See pp.
of 197 U.S.App.
93 S.Ct. 682, 34 L.Ed.2d 664 (1972).
D.C., pp. 343-344 of 607 F.2d supra.
81, J.A. 78, 174.
88. National Cable Television Ass'n, Inc. V. FCC,
156 U.S.App.D.C. 91, 100, 479 F.2d 183, 192
82. J.A. 78.
(1973). See H.R.Rep.No.93-876, 93d Cong., 2d
Sess. 5-6 (1974), U.S.Code Cong. & Admin.
83. J.A. 174.
News 1974, p. 6271 (description of records re-
quested must enable "a professional employee
u J.A. 175.
of the agency who [is] familiar with the subject
area of the request to locate the record with a
85. Id.
reasonable amount of effort").
86. J.A. 110 (emphasis in original). See Brief of
Appellants at 26-27.
354
607 FEDERAL REPORTER, 2d SERIES
that the effort required to locate the hy-
that may have been "the basis for testimo-
there is
pothesized "back-up" documents would be
ny at hearings" or "included in
of Wils
unreasonable here.
reports" on those bills. Fifteen of the nev-
Third
Second, plaintiffs argue that the Church
enteen documents plaintiffs cite from the
"patter
Committee Report refers to several docu-
Church Committee Report lie unmistakably
ing wit
ments that "appear to be within the scope
outside the scope of their FOIA request."
fides.
of plaintiffs' FOIA request
and
The two remaining documents are tran-
having
copies of which could reasonably be expect-
scripts of Congressional hearings in execu-
found si
ed to be in the possession of the CIA, but
tive session. In his affidavit, Wilson stats
"inconsi
which defendants have neither identified or
ed that these documents, "if they exist, are
disclosu
produced
This argument is
not held by the [CIA]." Since the
take a
similarly unpersuasive. In their expanded
scripts are Congressional materials, and
Holtz o
request for "legislative history," plaintiffs
since there is no indication in the Church
ry," def
sought access to Congressional reports and
Committee Report that the transcripts were...
reports;
hearings on specific bills, and CIA materials
received from or returned to the CIA,
her to
Holtz r
89. Final Report of the Senate Select Committee
constitutes a report or hearings on that legisla-
hearing
to Study Governmental Operations with Re-
tion and none was prepared for testimony on?
spect to Intelligence Activities, S.Rep.No.94-
that legislation. See Wilson Affidavit, J.A. 183.
Hearing
755, book 1, 94th Cong., 2d Sess. (1976) [here-
Skidmo
inafter "Church Committee Report" or "Re-
92. Hearings before the Senate Armed Services
port"].
Comm. on S. 758 (1947), Hearings before the
hearing
House Comm. on Expenditures in the Execu-
back-up
90. J.A. 178.
tive Departments on H.R. 2139 (1947) (cited in
Vanden
Report, e. 8., at 72 n.6). The Hearing Tran-
script identified by the CIA contains some of
The Ag
91. In their Brief at 21-23 n.7, plaintiffs refer to
the following documents:
the testimony taken at the House hearings
sure fol
(a) Two memoranda from Wm. J. Donovan
Plaintiffs seek, and the CIA denies possession.
tern of
to the President, dated 1941 and 1944 (cited in
of, transcripts of the remainder of the testimo™
anythin
Report at 481 n.24 & 482 n.28). These docu-
ny taken at those hearings.
deed, the
ments antedate by at least three years the legis-
lation cited by plaintiffs; neither memorandum
93. J.A. 183.
V. CIA
discusses any legislation whatever, nor was ei-
always
ther prepared for testimony on legislation. See
94. The Church Committee Report cites only
licized I
Wilson Affidavit, J.A. 183.
two documents that are said to be "on file at
and 20-
(b) Three memoranda from the CIA General
the CIA." The first is the "Statement of the
Counsel to the Director, dated 1947-49 (cited in
Director of Central Intelligence [Hillenkoetter]
request
Report, e. g., at 132 n.19, 72 n.7 & 492 n.70).
Before the House Armed Services Committee
alone ca
These documents are internal CIA memoranda
[on] 8 April 1948" (cited in Report at 494 n.74).
of good
which were not prepared for testimony on the
This is the "Hillenkoetter Statement" which the
cited legislation and were in no way used in the
CIA identified and for the most part released.
The 6
legislative process. See Wilson Affidavit, J.A.
The second is so-called "Testimony of Gen.
ing the
183.
Hoyt S. Vandenberg before the House Armed
covery
(c) Three transcripts of Congressional testi-
Services Committee Hearing on H.R. 5871,
whethe
mony, dated 1975 (cited in Report, e. 8. at 141
4/8/48" (cited in Report at 495 n.80). The CIA
n.l, 133 n.27 & 483 n.32). These documents
at oral argument denied possession of this doc-
95. 18
postdate by 26 years the legislation cited by
ument. We believe that the document in all
(footr
plaintiffs; the testimony was not given in hear-
probability does not exist. According to the
T
ings on that legislation.
Congressional Record Daily Digest, the only
(d) Three internal CIA memoranda, dated
CIA officials to testify on H.R. 5871 before the
con
1961-74, and one memorandum prepared by
House Armed Services Committee on 8 April
ma
the
the Justice Dept., dated 1962 (cited in Report,
1948 were Hillenkoetter and Walter Pforzheim-
e. g., at 128 n.la, 133 n.25, 478 n.10 & 133
er. 94 Cong.Rec. D242 (1948). The error in
car
n.26). These documents postdate by 13 years
the Church Committee Report seems easily ex-
me
the legislation cited by plaintiffs; none of the
plicable. The transcript of Hillenkoetter's 8
be
memoranda was prepared for testimony on
April 1948 testimony was entitled simply
se₁
that legislation. See Wilson Affidavit, J.A. 183.
"Statement of the Director of Central Intelli-
See
(e) Three draft legislative histories of the
docl
gence." Hillenkoetter was Director in 1948,
CIA prepared by the CIA Legislative Counsel's
1
"The
and Vandenberg was Director in 1947. Appar-
Office, dated 1967 (cited in Report, e. 8., at 71
ently, the report wrongly attributed the 8 April
con:
teris
n.5 & 480 19). These documents postdate by
1948 statement of the unnamed CIA Director to
18 years the legislation cited by plaintiffs; none
ed (
Hillenkoetter's predecessor.
60
GOLAND V. CENTRAL INTELLIGENCE AGENCY
355
Cite as 607 F.2d 339 (1978)
there is no reason to question the good faith
search used an "underinclusive" definition
10-
of Wilson's asseveration.
of "legislative history." We disagree.
:V-
Third, plaintiffs argue that the CIA's
The CIA personnel conducting the search
he
"pattern of obfuscation and delay" in deal-
evidently used the definition of "legislative
bly
ing with them signals the Agency's mala
history" that plaintiffs gave them, namely,
L"
fides. The Agency, they say, first denied
"hearings, reports, and Executive Branch
an-
having any responsive documents, then
back-up documents." That this is so is sug-
cu-
found some, then found some more: these
gested by the fact that the CIA's search
at-
"inconsistent positions" and this piecemeal
produced hearings, reports, and Executive
are
disclosure are said to imply bad faith. We
Branch backup documents. Nor do we
an-
take a different view of the facts. Sara
think discovery was necessary to enable
and
Holtz originally requested "legislative histo-
plaintiffs "to reformulate their request to
rch
ry," defined as Congressional hearings and
eliminate confusion and the possibility of
ere
reports; the CIA not unnaturally directed
future lawsuits." "Legislative history"
A,M
her to the Library of Congress. When
admittedly is not a term whose meaning
Holtz replied that she wanted unpublished
can be nicely cabined within bright lines;
hearings and reports, the CIA identified the
but it is the term plaintiffs used, and if any
on
183.
Hearing Transcript. When Goland and
ambiguity was introduced thereby plaintiffs
Skidmore said that they wanted not only
must reap what they have sown. It would
the
hearings and reports, but Executive Branch
be bizarre indeed if a plaintiff, simply by
back-up documents, the CIA identified the
employing ambiguous language in his FOIA
in
Vandenberg and Hillenkoetter Statements.
request, could assure himself of potentially
of
The Agency's "piecemeal" pattern of disclo-
harassing discovery for the purpose of dis-
sure followed faithfully the piecemeal pat-
pelling the confusion he had engendered.
tern of requests, and thus here indicated, if
anything, good faith rather than bad; in-
[11] We hold, therefore, that plaintiffs
deed, this Court held as much in Weissman
have made no showing of CIA bad faith
V. CIA.* The Agency's responses were not
sufficient to impugn the Wilson affidavit,
always timely; but in view of the well-pub-
which on its face suffices to demonstrate
licized problems created by the statute's 10-
that the CIA's search for responsive docu-
at
and 20-day time limits for processing FOIA
ments was complete. For this reason, the
the
requests and appeals," the CIA's delay
district court's grant of summary judgment
alone cannot be said to indicate an absence
without discovery was within its discretion.
of good faith.
the
The dissent, while not seriously question-
D. The CIA's Definition of Agency
ing the CIA's good faith, says that dis-
"Records."
covery is needed in any event to ascertain
Plaintiffs contend that the CIA's defini-
CLA
whether the CIA personnel conducting the
tion of agency "records" is unduly narrow,"
all
95. 184 U.S.App.D.C. at 123, 565 F.2d at 698
96. See J. T. O'Reilly, supra note 30, at 17.02.
the
(footnote omitted):
The CIA dealt with the instant request in a
97. See diss. op. at - of 197 U.S.App.D.C., at
the
conscientious manner. It disclosed much
366 of 607 F.2d.
material, it released additional material as
the result of an admInistrative appeal, and it
98. See id. at - at 366 of 607 F.2d.
in
came forward with newly discovered docu-
ex-
ments as located. Agency documents have
99. 32 C.F.R. § 1900.3(g) (1976) defined CIA
8
been released to plaintiff-appeilant on four
"records" to exclude (1) certain indexing and
separate occasions.
filing documents; (2) certain routing and trans-
See Fonda V. CIA, 434 F.Supp. at 502, appeal
mittal sheets; (3) books and periodicals; (4)
docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977):
documents prepared by an agency other than
"The CIA dealt with plaintiff's request in a
the CIA; and (5) documents furnished by for-
conscientious manner. It disclosed much ma-
eign governments under promise of confiden-
to
terial and it came forward with newly discover-
tiality. The definition was amended in 1977
ed documents as located.
and the latter two exclusions were removed.
807 F.2d-10
356
607 FEDERAL REPORTER, 2d SERIES
and that they have been injured because
they argue that even if all relief should be
1
the Agency relied on this definition in deny-
denied them they have "substantially pre-
I
ing them records to which they are entitled.
vailed" because the CIA released the Van-,
The CIA responds that plaintiffs lack stand-
denberg Statement and portions of the Hil-
ing to maintain this challenge, arguing that
lenkoetter statement after they commenced:
it did not rely on the definition's "excep-
suit. Even if plaintiffs could show some!
tions" in processing plaintiffs' request. The
causal nexus between their litigation and
district court did not reach this issue. We
the CIA's disclosure,¹⁰¹ which they have not
o
do not reach it either. We have held that
1
done,¹⁰² we doubt that plaintiffs could be
the CIA made a full search in good faith for
t
said to have "substantially prevailed" if
responsive documents, and that the with-
1
held material was withheld properly. Since
they, like Pyrrhus, have won a battle but
d
lost the war.¹⁰³
plaintiffs have received all documents to
A
which they are entitled, no live controversy
The judgment of the district court ac-
n
remains between them and the CIA on the
cordingly is
8
definitional issue.
Affirmed.
to
V
E. Attorneys' Fees.
n
BAZELON, Circuit Judge, dissenting:
n
The trial judge declined to award attor-
I respectfully submit that the court today
ly
neys' fees to plaintiffs. The FOIA provides
de
that attorneys' fees and costs may be as-
departs from well-established principles in
de
sessed against the United States "in any
this circuit in order to sustain summary
di
case
in which the complainant
judgment for the Central Intelligence
F
has substantially prevailed." 100 Although a
Agency (CIA). The court also adopts a
cursory reading of this opinion would not
restrictive definition of "agency records"
a
suggest that plaintiffs have passed this test,
that erodes the right to disclosure under the
of
See 42 Fed.Reg. 24,049 (12 May 1977) (codified
post hoc, ergo propter hoc, a fallacy that Con-
D
at 32 C.F.R. $ 1900.3(g) (1977)).
gress wisely refrained from incorporating into
al
the attorneys' fees provision of FOIA. See
100. 5 U.S.C. 552(a)(4)(E) (1976).
er
VLIAC, 546 F.2d at 514.
is
101. See Vermont Low Income Advocacy Coun-
ed
cll, Inc. (VLIAC) V. Usery, 546 F.2d 509, 513 (2d
103. In order to win the war, plaintiffs need not
Cir. 1976) (Friendly, J.):
obtain a judgment in court. See Cuneo V.
ro
In order to obtain an award of attorney
Rumsfeld, 180 U.S.App.D.C. 184, 188-89, 553
ta
fees in an FOIA action, a plaintiff must show
F.2d 1360, 1364-65 (1977) (Tamm, J.) (citing
si
at minimum that the prosecution of the ac-
cases); VLIAC, 546 F.2d at 513. They must,
tion could reasonably have been regarded as
however, substantially prevail. Cf. Cuneo, 180
1.
necessary and that the action had substantial
U.S.App.D.C. at 189, 553 F.2d at 1365 (plain-
causative effect on the delivery of the infor-
tiffs substantially prevailed where, "[a]fter al-
2.
mation.
most eight years of tedious, hard fought litiga-
ou
102. Res ipsa loquitur, as it were, is of no assist-
tion, the government, faced with the appoint-
-
ance to plaintiffs here. The CIA's release of
ment of a special master to review the case,"
:
the Statement, to all appearances, represents
supplied all the material requested). Even of
-
I
its good-faith efforts to come forward with
the plaintiff is held to have substantially pre-
-
newly-discovered documents as located. See
vailed, the award of attorneys' fees lies within
-
p. - of 197 U.S.App.D.C., p. 355 of 607 F.2d
the district court's discretion. See Cuneo, 180
-
& note 95 supra. The fact that these docu-
U.S.App.D.C. at 189-90, 553 F.2d at 1365-66;
ments were released after plaintiffs brought
VLIAC, 546 F.2d at 512-13 (citing legislative
I
suit on 28 Jan. 1977, to all appearances, owes
history). An important factor in the exercise
to the time-consuming nature of a search for
of this discretion is a determination whether
-
materials "used to prepare for congressional
the agency has been "recalcitrant in its opposi-
(
testimony," p. - of 197 U.S.App.D.C., p. 353
tion to a valid claim or [has] otherwise engaged
1
of 607 F.2d supra; and to the fact that plain-
in obdurate behavior." Cuneo, 180 U.S.App.
$
tiffs did not request access to such materials
D.C. at 190, 553 F.2d at 1366. The CLA's be-
$
until 16 Dec. 1976. See pp. of 197
havior was neither recalcitrant nor obdurate
I
U.S.App.D.C., pp. 343-344 of 607 F.2d su-
here.
o
pra. Plaintiffs' argument, in fine, boils down to
GOLAND V. CENTRAL INTELLIGENCE AGENCY
357
Cite as 607 F.2d 339 (1978)
Freedom
of
Information
Act
1
(FOIA)
and
ant agency] conclusory and generalized alle-
should be
promotes secret law.
gations of exemptions
but will
tially pre-
require a relatively detailed analysis in
the Van-
I. THE NEED FOR DISCOVERY
manageable segments [of the contents of
of the Hil-
IN FOIA CASES
documents the agency seeks to withhold]."
ommenced
Without discovery, a party to litigation
Id. 157 U.S.App.D.C. at 346, 484 F.2d at 826.
how some
may not have access to facts necessary to
We held such a procedure necessary-be-
ation and
oppose a motion for summary judgment.
fore summary judgment could be granted
1 have not
This problem is especially acute for plain-
to the government--to enable a FOIA
could be
tiffs in FOIA cases. Indeed, recognition of
vailed"
if
plaintiff "to argue with desirable legal pre-
this dilemma has shaped a number of our
cision for the revelation of the concealed
battle but
decisions. In Vaughn V. Rosen, 157 U.S.
information." Id. 157 U.S.App.D.C. at 343,
App.D.C. 340, 484 F.2d 820 (1973), cert. de-
484 F.2d at 823.
court ac-
nied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d
873 (1974), summary judgment was granted
Subsequently, the problem of ensuring
to the government on the basis of an affida-
adversariness arose in a context similar in
vit declaring that the documents sought
several respects to the case at bar. In
were exempt from disclosure. We reversed,
Schaffer V. Kissinger, 164 U.S.App.D.C. 282,
enting:
recognizing that a FOIA plaintiff "obvious-
505 F.2d 389 (1974) (per curiam), before
ty cannot know the precise contents of the
today
plaintiff was able successfully to pursue
documents sought; secret information is, by
inciples in
discovery, summary judgment was granted
definition, unknown to the party seeking
summary
to the government on the basis of an affida-
fdisclosure[,]" 157 U.S.App.D.C. at 343, 484
ntelligence
F.2d at 823; that "[t]his lack of knowledge
vit stating that the documents plaintiff
adopts a
seriously distorts the traditional
sought were classified "confidential" pursu-
records"
adversary nature of our legal system's form
ant to Executive Order 11652, 3 C.F.R. 339
under
the
of dispute resolution[,]" id. 157 U.S.App.
(1974), 50 U.S.C. § 401 (Supp. IV 1974).
that Con-
D.C. at 344, 484 F.2d at 824; and that,
This court reversed, emphasizing that plain-
orating
into
although "formal" discovery under the Fed-
tiff had also filed an affidavit, as provided
FOIA.
See
eral Rules of Civil Procedure was not at
for by Rule 56(f), Fed.R.Civ.P., 3 stating his
Lissue,2 procedures would have to be institut-
belief that genuine issues existed as to
need
not
ed to provide FOIA plaintiffs information
whether the classification was properly ef-
Cuneo
v.
roughly equivalent to what they would ob-
fected and indicating that he could not veri-
188-89,
553
tain through such discovery. "[C]ourts will
fy that belief without discovery. The court
J.)
(citing
simply no longer accept [from the defend-
based its holding on the language of Rule
They
must.
Cuneo,
180
14 5 U.S.C. § 552 (1976).
ter statement," Part III(A). infra; the breadth
1365
(plain-
"[a]fter
2 The sole issue in Vaughn was whether the
of the CIA's search for responsive documents
al-
ought
litiga-
agency had demonstrated by affidavit that the
and the reasons for delay, Part IV, infra; and
the
appoint-
documents sought were exempt from disclo-
whether the agency's decision to disclose cer-
the
case."
sure. Plaintiff simply contested the sufficiency
tain materials was prompted by this lawsuit,
Even
if
of the affidavit. 157 U.S.App.D.C. at 343, 484
Part V. infra. In addition, plaintiffs contend
that the affidavits filed by the CIA fail ade-
antially
pre-
F.2d at 823. He did not attempt to bolster his
case by serving interrogatories on agency offi-
quately to describe specific materials withheld
lies
within
180
"cials, Rule 33, Fed.R.Civ.P., or by deposing
and the reasons for nondisclosure, Parts II n.8
Cuneo,
them, Rules 30 and 31. Thus the question
and III(B), Infra.
1365-66;
legislative
whether discovery under the rules should be
3. (f) When Affidavits Are Unavailable. Should
exercise
permitted was not involved in the case.
it appear from the affidavits of a party oppos-
the
whether
In the present case, by contrast, plaintiffs
ing the motion that he cannot for reasons stat-
opposi-
turge that proper ventilation of the issues re-
ed present by affidavit facts essential to justify
its
engaged
quires both discovery and more detailed affida-
his opposition, the court may refuse the appli-
vits. Plaintiffs seek to discover the circum-
U.S.App.
cation for judgment or may order a continu-
CIA's
be
stances surrounding the creation, and posses-
ance to permit affidavits to be obtained or
obdurate
sion by the CIA, of the "hearing transcript,"
depositions to be taken or discovery to be had
Part II, infra: the procedures and substantive
or may make such other order as is just.
criteria observed in classifying the "Hillenkoet-
358
607 FEDERAL REPORTER, 2d SERIES
56(f),' the policies underlying the FOIA,
the CIA has made no claim that preparation
for 8
and common sense:
of the index mandated by Vaughn V. Rosen
plaint
Facts respecting the classification of the
would have been either overly burdensome
The f
reports in question are solely in the con-
or likely to disclose matters that should be
a tran
trol of the [defendant agency]. [Plain-
kept secret. Moreover, the CIA offers nei-
ings (
tiff] should be allowed to undertake dis-
ther evidence nor reason to find that a
Exper
covery for the purpose of uncovering
complete bar to discovery was necessary to
on Ju
facts which might prove his right of ac-
protect its personnel from harassment.
as th
cess to the documents which he seeks.
Proper supervision of the discovery process,
docun
164 U.S.App.D.C. at 284, 505 F.2d at 391.
as described in the margin,5 could have
rector
It is significant that there was no evidence
avoided such problems. Through indexing
House
in Schaffer bolstering plaintiff's claim that
and discovery the adversary system would
1948.'
the affidavit submitted by the defendant
have worked to maximize the probability
"Hille
agency was either executed in bad faith or
that nonexempt information would be dis-
My
was somehow erroneous. Without dis-
closed, thus fulfilling the central purpose of
tion 1
covery, plaintiff had no means of producing
the FOIA.6
unava
such evidence. Relying solely on his Rule
In sum, I submit that the grant of sum-
specif
56(f) affidavit, the court remanded the case
mary judgment to the CIA was premature.
the F
with instructions to permit plaintiff to un-
This position is reinforced by the factual
a "cor
dertake discovery relevant to whether the
ambiguity which pervades this record and
record
reports in question were properly classified
which is exacerbated by the questionable
reach
"confidential."
legal standard on which the court distin-
"the
Today the court ignores both Schaffer
guishes "agency records" from "congres-
script
and the "overwhelming emphasis [the FOIA
sional documents in an agency's possession."
tached
places] upon disclosure," which guided our
reveal
analysis in Vaughn. 157 U.S.App.D.C. at
and c
343, 484 F.2d at 823. It does so in its zeal
II. THE MAJORITY'S
House
to protect the CIA from the burden of
"CONTROL/PROPERTY"
processing meritless FOIA requests for vi-
TEST
7. The
cy's
tal security information. I believe that
The dispute in this case centers on two
infor
such protection is available without eroding
documents which the CIA admittedly pos-
Sour
the requirements of the FOIA. First of all,
sesses and on the scope of the CIA's search
F.2d
whe
4. See note 3 supra.
lege asserted by a party seeking to resist dis-
is at
covery. Rule 26(c)(6). Thus discovery would
Th
5. The Federal Rules leave discovery in the
neither have overly burdened the agency nor
how
hands of the parties in the first instance. The
jeopardized its legitimate secrets, but would
raise
district court is charged with supervising the
have provided both plaintiffs and the district
han
process when disputes arise. Thus, if the CIA
court the information necessary to make the
rian
believed plaintiffs' requests for discovery to be
FOIA work.
port
burdensome or otherwise objectionable, it had
the
several alternatives to a motion for summary
gree
judgment that were more consonant with the
6. See generally S.Rep.No.813, 89th Cong., 1st
spirit of the FOIA. It could, for example, have
Sess. (1965); H.R.Rep.No.1497, 89th Conge 2d
8. 5
served objections to specific interrogatories on
Sess. (1966), U.S.Code Cong. & Admin.News
that
plaintiffs, who then would have had to decide
1966, p. 2418. The Senate Report states un-
solt
equivocally that "[i]t is the purpose of the
rev
whether to move in district court to compel
cla:
answers under Rule 37(a)(2). The CIA could
present bill
to establish a general
itself have moved in district court to terminate
qui
philosophy of full agency disclosure unless in-
Aft
or limit a deposition, Rule 30(d), or for a pro-
formation is exempted under clearly delineated
sel
tective order, Rule 26(c). The grounds for such
statutory language
S.Rep.No.813,
J.A
a protective order, like those for refusing to
supra, at 3. See also H.R.Rep.No.1497, supra,
tio
answer specific questions, are generous. The
at 3.
district court "may make any order which jus-
the
tice requires to protect a party from annoy-
For a brief discussion of the history and pur-
rev
ance, embarrassment, oppression, or undue
poses of the FOIA, see EPA V. Mink, 410 U.S.
Se
burden or expense.
Id. The district
73, 79-80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
th.
court may also, of course, recognize any privi-
th
GOLAND V. CENTRAL INTELLIGENCE AGENCY
359
Cite as 607 F.2d 339 (1978)
for additional documents responsive to
of 197 U.S.App.D.C., at 347 of 607 F.2d
plaintiffs' request for "legislative history."
(emphasis added). This conclusion is
The first document is a photostatic copy of
reached as a matter of law, thus eliminating
a transcript containing the minutes of hear-
any justification for discovery, on the basis
ings conducted by the House Committee on
of representations by CIA officials. The
Expenditures in the Executive Department
agency has stated by affidavit that the
on June 27, 1947. (Hereinafter referred to
transcript contains testimony taken in Ex-
as the "hearing transcript.") The second
ecutive Session; typewritten on both the
document is entitled "Statement of the Di-
cover and first page of the transcript is the
rector of Central Intelligence before the
word "Secret"; the text reveals that the
House Armed Services Committee-8 April
stenographer and typist were sworn to
1948." (Hereinafter referred to as the
secrecy; the CIA retains a copy of the
"Hillenkoetter statement.")
transcipt for "internal reference purposes"
My brothers agree with the CIA's conten-
only. Id. at - of 197 U.S.App.D.C., at
tion that the hearing transcript is simply
347 of 607 F.2d, J.A. at 80.
unavailable to the public, whether or not
In my view, the record in this case estab-
specifically exempted from disclosure by
lishes as a matter of law that the hearing
the FOIA.' They find that the transcript is
transcript is an "agency. record," and the
& "congressional document," not an "agency
court is empowered to order it withheld
record," and is therefore wholly beyond the
only if it qualifies for nondisclosure under
reach of the Act. The court reasons that
FOIA exemptions one or three.8 First of
"the circumstances attending [the tran-
all, the CIA claims to have had exclusive
script's] generation and the conditions at-
possession of this document for more than
tached to its possession by the CIA" plainly
thirty years.' More importantly, the CIA
reveal that it "remains under the control
acknowledges that it employs this informa-
and continues to be the property of the
tion in interpreting its organic legislation 10
House of Representatives." Maj. op. at -
-i. e., in making decisions with respect to
7. This is our first occasion to consider an agen-
until the CIA files an itemized description of its
cy's claim that the FOIA does not apply to
contents. See generally id.; Part III(B) infra.
$ information in its possession. Compare, e. B.,
Soucie V. David, 145 U.S.App.D.C. 144, 448
9. Although no explanation of "agency records"
F.2d 1067 (1971), in which the issue was
Is provided either in the FOIA itself or in the
whether the Office of Science and Technology
legislative history, the Justice Department has
is an "agency" for purposes of the FOIA.
suggested that the Act requires disclosure of
The Court of Appeals for the Tenth Circuit,
"records in being and in the possession or con-
however, has considered a claim similar to that
troi of an agency." R. Clark, Attorney Gener-
raised here by the CIA. In Cook V. Willing-
ai's Memorandum on the Public Information
ham, 400 F.2d 885 (10th Cir. 1968) (per cu-
Section of the Administrative Procedure Act 23
riam), the court decided that presentence re-
(1967), reprinted in Freedom of Information
ports are not "agency records" even though in
the possession of prison authorities. I disa-
Act Source Book, S.Rep.No.82, 93d Cong., 2d
gree. See note 13 infra.
Sess. 222 (1974) (emphasis supplied) (herein-
&, 5 U.S.C. §§ 552(b)(1), (3) (1976). I submit
after "Attorney General's Memorandum").
This interpretation supports plaintiffs' position
that the exemption one issue cannot be re-
that possession suffices and is consistent with
solved on this record since the CIA has failed to
the general view advanced here that any at-
reveal whether the procedures it followed in
,Classifying the transcript comport with the re-
tempt by the courts to define "agency records"
quirements of Executive Order No. 11652. The
must be shaped primarily by the policy of full
Affidavit of George L. Cary, Legislative Coun-
disclosure underlying the Act. See notes 6
sel of the CIA (hereinafter "Cary Affidavit"),
supra and 12 infra.
JA at 81, states only that a "Secret" classifica-
tion marking has been affixed on the face of
10. The Cary Affidavit states that the agency
the transcript. It does not mention the other
uses the transcript "in conjunction with con-
requirements contained in the Executive Order.
gresslonal action on legislation dealing with the
See generally Part III(A) infra. I suggest also
establishment of the Office of the Director of
that neither exemption one nor exemption
Central Intelligence, the Central Intelligence
three can be held applicable to the transcript
Agency and its functions." J.A. at 80.
360
607 FEDERAL REPORTER, 2d SERIES
policy and operations. The Act does not
cies that obviously become "agency records"
tion 3 cas
Lion is wh
define "agency records." But the House
in the ordinary course. See, e. g., Wash-
and Senate reports reveal that the funda-
ington Research Project, Inc. V. HEW, 164
agency to
mental purpose of the FOIA was to open
illustrate,
U.S.App.D.C. 169, 504 F.2d 238 (1974)
administrative policy and operations to the
(grant application submitted to National Im"
amount unlawful of
light of public scrutiny.¹
stitute of Mental Health by noncommercial
in any inc
I also find the court's "control property"
research scientist); Irons V. Gottschalk, 369
scription (
test unpersuasive. We are not told what it
F.Supp. 403 (D.D.C.1974) (patent applica-
not "agen
meant by congressional "control" over a
tions). Nor can the court rely on the view.
are agend
document in an agency's possession; or in
that because Congress may have somehow
under ex
what sense such a document can be con-
forbidden the CIA to disclose the transcript,
lysts & A
sidered congressional "property." The fact
thus exercising "control" over its contents,
vice, 164
that Congress is a non-agency does not pre-
the transcript cannot be considered an
clude a document or copy of a document it
"agency record." "Control" in this sense
(1974).
goes to the question whether a document is
It appe
has created from ever qualifying as an
"agency record." Federal agencies regular-
exempt from disclosure-not to whether it
ment the
ly receive documents created by non-agen-
is an "agency record." 12 In every exemp-
concepts
The cour
11. The reports indicate that the FOIA was in-
F.2d 1067, 1076-77 (1971); Bristol-Myers Co. V.
would be
tended to strengthen the Public Information
FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935,
terest in,
section of the Administrative Procedure Act, 5
938 (1970); American Mail Line, Ltd. V. Gulick,
U.S.C. § 1002 (1964), which was "drawn upon
133 U.S.App.D.C. 382, 385, 411 F.2d 696, 699
tents of 1
the theory that administrative operations and
(1969); H.R.Rep.No.1497, 89th Cong., 2d Sess.
the conte
procedures are public property which the gen-
1-2, 5-6, 8-9, 11 (1966); S.Rep.No.813, 89th
transcript
eral public, rather than a few specialists or
Cong., 1st Sess. 3-6, 8, 10 (1965). Congress
lobbyists, is entitled to know or have ready
replaced them with a general requirement that
congressi
means of knowing with definiteness and assur-
all "records" be disclosed, 5 U.S.C. § 552(a)(3)
at odds w
ance." H.R.Rep.No.1497, 89th Cong., 2d Sess.
(1976), offset by nine-and only nine-catego-
the Hille
3 (1966) (quoting from H.R.Rep.No.752, 79th
ries of privileged material. Id. § 552(b)(1)-(9).
record."
Cong, 1st Sess. 198 (1945), U.S.Code Cong. &
To avoid the creation of new loopholes, Con-
Admin.News 1966, pp. 2418, 2420. See also
gress expressly limited the grounds for nondis-
D.C., at
S.Rep.No.813, 89th Cong., 1st Sess. 8 (1965)
closure to those specified in the exemptions:
script an
("[T]he very purpose for which [the Public In-
"This section does not authorize withholding
tain testi
formation Section] was intended [was to guar-
information or limit the availability of records
antee] the public's right to know the operations
to the public, except as specifically stated in
ligence d
of its government."); Dept. of the Air Force V.
this section." Id. $ 552(c) (emphasis supplied).
13. The
Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48
My colleagues justify their view of congres-
"frivolo
L.Ed.2d 11 (1976); SOC Development Corp. V.
sional "control" on the theory that "Congress
is not a
Mathews, 542 F.2d 1116 (9th Cir. 1976).
has broad powers to keep its documents secret
n.47. Il
My brothers would facilitate the flow of in-
[and does not] waive[ its
looks ti
formation between Congress and the Executive
prerogatives of confidentiality" when it trans-
but also
fers a "secret" document to an agency. Maj.
branch, maj. op. at - of 197 U.S.App.D.C., at
stand tl
op. at n.48.
346 of 607 F.2d, at the prohibitive cost of
I think it is fair to say that the court creates a
questio
perpetuating the "secret law" we have con-
record'
tenth exemption for documents subject to what
demned so frequently. See e. B., Tax Analysts
docume
it terms "congressional prerogatives of confi-
& Advocates V. IRS, 164 U.S.App.D.C. 243, 246,
dentiality." To be sure, there can be no doubt
Surely,
505 F.2d 350, 353 (1974); Cuneo V. Schlesinger,
whethe
about the existence of congressional power to#
157 U.S.App.D.C. 368, 173, 484 F.2d 1086, 1091
maintain the secrecy of congressional proceed-
script
n.13 (1973).
branch
ings, see U.S.Const. art. 1, $ 5, and thus to
12. This view of congressional "control" derives
preserve the secrecy of documents in which the
That
from the history of the FOIA as well as its plain
minutes of those proceedings are transcribed.
perple
language. Before the FOIA was enacted, the
The question in this case, however, is not
flected
disclosure provisions of the Administrative
whether such a power exists, but whether Con-
ham,
Procedure Act allowed agencies to withhold
gress continues to exercise it after transferring
riam).
information "in the public interest," or "for
a document to an agency on an ostensibly per-
senter
good cause shown," or on the ground that the
manent basis.
ties V
person seeking the record was not "properly
1 read the FOIA as an unequivocal declara-
"was
and directly concerned." 5 U.S.C. $ 1002
tion by Congress that documents which have
and t]
(1964). The FOIA was designed specifically to
become part of the administrative process are
of th
eliminate these discretionary standards. Sou-
subject to full disclosure unless specifically ex-
event
cie V. David, 145 U.S.App.D.C. 144, 153-54, 448
empted.
GOLAND V. CENTRAL INTELLIGENCE AGENCY
361
Cite as 607 F.2d 339 (1978)
tion 3 case, for example, the ultimate ques-
secretly before Congress. J.A. at 79-82.
ords"
tion is whether Congress has forbidden the
There is no logical reason to believe, and
Wash-
agency to disclose the records sought. To
none has been suggested, that Congress
V, 164
Mustrate, 26 U.S.C. § 7213(a)(1) makes it
would have an interest in controlling the
(1974)
mlawful "to divulge to any person the
testimony in one but not the other. The
al In-
amount of income
set forth
transcript contains, in addition to testimo-
ercial
any income return
This pro-
ny, questions and comments by committee
k, 369
scription does not mean that tax returns are
members. Perhaps, then, the testimony
plica-
spot "agency records." Rather, tax returns
should be considered the property of the
view
are Agency records that must be withheld
Executive branch, where it originated, and
nehow
Bader exemption 3. See, e. g., Tax Ana-
the comments the property of Congress. If
script,
lysts & Advocates V. Internal Revenue Ser-
so, to the extent the transcript consists of
itents,
vice, 164 U.S.App.D.C. 243, 505 F.2d 350
nonexempt testimony it should be disclosed
ed an
1974).
under the majority's own rationale. 13 The
sense
It appears that the court would supple-
only further difference between the two
ient
is
ment the element of "control" with other
documents that is even arguably material is
ther
it
concepts having to do with "property."
that the copy of the Hillenkoetter state-
xeTp-
The court's ultimate position, as I see it,
ment which the CIA possesses was appar-
Co.
V.
would be that Congress has a property in-
ently typed by agency employees, while the
935,
terest in, as well as control over, the con-
CIA's copy of the transcript was tran-
Gulick,
itents of the transcript, the paper,on which
scribed and typed by employees of Con-
699
Sess.
the contents are typed, and any copy of the
gress. As I have indicated, the origin of a
89th
Transcript. But so sweeping a notion of
piece of paper is simply not dispositive of
ongress
that
congressional control and property is plainly
the question whether it qualifies as an
2(a)(3)
at odds with the majority's concession that
"agency record."
catego-
the Hillenkoetter statement is an "agency
In any case, even assuming the "con-
(1)-(9).
Con-
record." Maj. op. at - of 197 U.S.App.
trol/property" standard is the correct one,
ondis-
D.C., at 348 of 607 F.2d. Both the tran-
factual ambiguities in the record would pre-
ptions:
script and the Hillenkoetter statement con-
clude summary judgment. If Congress
olding
ecords
testimony originally prepared by intel-
does, generally speaking, exert control over,
in
ligence officials and subsequently delivered
and maintain property interests in, docu-
ngres-
The majority asserts that this argument is
court can be said to have a "property" interest
ngress
frivolous" because "the [h]earing [t]ranscript
in a presentence report since such reports are
secret
not an agency record
Maj. op. at
prepared for that court by an arm of that
60.47. In so doing the majority not only over-
court-the United States Probation Office. See
trans-
looks the "property" element of its own test,
Maj.
That also assumes its conclusion. As I under-
Rule 32(c)(1), Fed.R.Crim.P. Since the con-
tents of a presentence report originate with the
stand the legal standard the court proposes, the
question whether a document is an "agency
courts, however, not with the Executive
a
what
record" requires consideration of whether the
branch, such reports would appear distinguish-
confi-
document is the "property" of an agency.
able under the majority's standard from the
doubt
Surely, then, the majority must consider
testimony contained in the hearing transcript at
whether the testimony contained in the tran-
issue here.
to
ceed-
Milleript branch. is the "property" of the Executive
In any event, I believe that Cook was wrong-
ly decided. The brief opinion in that case fails
to
That the majority fails to consider fully the
to clarify exactly how the sentencing court ex-
the
ribed.
Perplexity of its "property" rationale is re-
ercises control over a document in the posses-
not
"ham, 400 F.2d 885 (10th Cir. 1968) (per cu-
Lected also by its reliance on Cook V. Willing-
sion of prison authorities. Moreover, the opin-
ion fails to envision the possibility that the
Con-
slam). In that case the court held that a pre-
sentencing court could ever relinquish such
per-
sentence ties report in the hands of prison authori-
control. In my view, once the prison authori-
ties had possession of the report for use in
was was not an "agency record" because it
have
Fund thereafter remains in the exclusive control
made for the use of the sentencing court
connection with administrative decisions (e. B.,
parole release), the report became a quintes-
are
of that court despite any joint utility it may
sential "agency record." See note II supra
ex-
and accompanying text.
serve." Id. Perhaps the sentencing
362
607 FEDERAL REPORTER, 2d SERIES
ments possessed by federal agencies, the
tion of the transcript's secrecy to be crucial.
A
majority's test generates a need to as-
Even without discovery plaintiffs have
Ir
certain the methods by which such control
demonstrated that the Church Committee
cour
is exercised and relinquished, and the
has published portions of the transcript."
docu
means by which such property interests are
created and extinguished. In this case dis-
III. THE CIA'S CLAIMS OF
tain
covery is necessary specifically to determine
EXEMPTION
it w
whether Congress or the committee that
U.S
conducted the hearings ever instructed the
The majority adopts the CIA's declara-
(que
CIA to preserve the secrecy of the tran-
tion by affidavit that the withheld por-
2d
script, and, if so, for how long. Apparently
tions 16 of the Hillenkoetter statement are
Dep
the transcript itself contains no such ex-
exempt from disclosure as a matter of law
at 1
press instruction, and the CIA concedes that
on grounds of national security. This result
dete
the source of the "Secret" classification is
is reached by two separate paths-directly,
on 1
unknown. J.A. at 80. The fact that the
under FOIA exemption one, 5 U.S.C.
davide
committee met in Executive Session serves
§ 552(b)(1) (1976), and indirectly, by incor-
the
only to raise further questions concerning
porating into FOIA exemption three, id.,
men
the nature of the "longstanding practice"
§ 552(b)(3), the nondisclosure provisions of
Wit
governing secrecy of such sessions to which
the National Security Act of 1947, 50 U.S.C.
mer
the majority refers. Maj. op. at n.45.14
§ 403(d)(3), and the Central Intelligence
der,
Also, discovery is necessary to determine
Agency Act of 1949, 50 U.S.C. § 403g. See
cati
whether, in the thirty years during which
generally Maj. op. at
of 197 U.S.
T
the CIA has possessed the transcript, it has
App.D.C., at 348-352 of 607 F.2d. The
asse
ever acted inconsistently with congressional
majority may well be correct in concluding
ter
"control," as by disclosing the contents of
that disclosure of the withheld material
held
the transcript to other agencies or individu-
would threaten our national security. Con-
class
als without seeking congressional authority.
gress, however, has unambiguously ex-
ecut
Finally, plaintiffs should be permitted to
pressed its intention that such determina-
of
pursue further the question whether Con-
tions shall be made de novo. 5 U.S.C.
cla
gress itself has explicitly or implicitly indi-
§ 552(a)(4)(B) (1976).¹⁷ The affidavits sub-
se]
cated that it no longer considers preserva-
mitted by the CIA are no substitute.
close
grown
14. The majority acknowledges that H.R.Rule
15. The Church Committee Report, Foreign and
§ :
XI(1)(k)(7), which governs disclosure of testi-
Military Intelligence, Final Report of the Select
for
mony taken in Executive Session of the House
sul
Committee to Study Governmental Operations
of Representatives, did not exist in 1947, when
als
with respect to Intelligence Activities, S.Rep.
the hearings in question were conducted. Maj.
and
No.94-755, 94th Cong., 1st Sess., pt. 1 (1976),
op. at n.45. The majority states, however, that
ex
refers to or quotes from the hearing transcript
"the Rule simply formalized long-standing
me
at 72n. 6; 129n. 2, 7; 136n. 32-34; 138n. 41a;
practice
[requiring that] 'all testimo-
of
480n. 17, 487-488n. 53; and 488n. 56-57.
ny taken in executive hearings
be
wl
secret and
not be released
be
16. The CIA has deleted approximately 20%, or
without the approval of a majority of the sub-
$
committee." Id. (quoting from S.Rep.No.5,
23 pages, of the Hillenkoetter statement. Brief
Re
81st Cong., 1st Sess., 3-4 (1949)).
for the Government at 21.
18.
The "practice" to which the court refers is
close
ambiguous at best. For one thing, the court
17. Congress made its will clear in Pub.L.No.93-
relies on practice in the Senate, and the House
502, 88 Stat. 1561 (1974), which amended the
FOIA in part to overrule the decision by the
-
may have functioned differently. And the
practice of either branch of Congress may have
Supreme Court in EPA V. Mink, 410 U.S. 73, 93
-
provided for disclosure without approval by
S.Ct. 827, 35 L.Ed.2d 119 (1973). In Mink the
1
-
committee after a specified duration. More-
Court had interpreted 5 U.S.C. $ 552(b)(1),
5 1
over, assuming Senate practice is relevant, the
which exempted from disclosure those matters
"specifically required by Executive order to be
19.
court should consider whether disclosure of
portions of the transcript by the Church Com-
kept secret in the interest of the national de-
ter
mittee, see note 15 infra, might substitute for
fense or foreign policy," not to allow judicial
that
approval by the committee that originally con-
review of Executive security classifications and
exi
Th
ducted the hearings.
accordingly not to allow in camera inspection
GOLAND V. CENTRAL INTELLIGENCE AGENCY
363
Cite as 607 F.2d 339 (1978)
A. Exemption One
is the Order presently in force. See 3
In the case of exemption one the district
C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV
court must determine the propriety of a
1974). Perhaps discovery pertaining to the
document's classification according to "both
validity of the original classification would
procedural and substantive criteria con-
be unnecessary if reclassification under Ex-
tained in the Executive Order under which
ecutive Order No. 11652 had been properly
it was classified." Zweibon V. Mitchell, 170
effected. The district court, however, was
U.S.App.D.C. 1, 49, 516 F.2d 594, 642 (1975)
plainly in error. Section 4(A) of the Execu-
(quoting from H.R.Rep.No.1380, 93d Cong.,
tive Order requires that classified material
2d Sess!, 12 (1974)); see also Halperin V.
"show on its face its classification and
Department of State, 184 U.S.App.D.C. 124
whether it is subject to or exempt from the
at 128, 565 F.2d 699 at 703 (1977). Such
General Declassification Schedule. It shall
determinations could not have been made
also show the office of origin, the date of
on the record in this case because the affi-
preparation and [the date of] classification
davit submitted by the CIA fails to reveal
" Excepting that the word "Se-
the date on which the Hillenkoetter state-
cret" and the date of preparation appear on
ment was originally classified. J.A. at 81.
Without discovery, the district court could
the face of the Hillenkoetter statement,
merely speculate about which Executive Or-
J.A. at 80, there is no indication in the
der, if any," governed the original classifi-
record that these procedures were followed.
cation.
We said recently in Halperin V. Depart-
The district court apparently relied on an
ment of State, 184 U.S.App.D.C. 124, 565
asserted reclassification of the Hillenkoet-
F.2d 699 (1977), that the government can-
ter statement in concluding that "the with-
not claim a statutory exemption from the
held portions
have been properly
FOIA if it has failed to comply with the
classified according to the provisions of Ex-
procedures necessary to give such exemp-
ecutive Order No. 11652," J.A. at 189, which
tion effect.2
of a contested document bearing a security
President Truman. See Executive Order No.
classification so that nonsecret matter could be
10290, 3 C.F.R. 789 (1953). The Office of War
separated from secret matter and ordered dis-
Information, however, had in 1942 issued a
closed. 410 U.S. at 81-84, 93 S.Ct. 827. Con-
government-wide regulation dealing with se-
gress responded by amending the language of
curity classification under the authority of Ex-
1 552(b)(1), see note 18 infra, to provide clearly
ecutive Orders 9103 and 9182. See Office of
for judicial review of both the procedural and
War Information Regulation No. 4, issued Sept.
substantive propriety of the classification. It
28, 1942, amended, Nov. 13, 1942. See general-
also specified that where the documents sought
ly H.R.Rep.No.93-221, 93d Cong., 1st Sess.,
are withheld on the basis of any of the nine
exemptions, "the court shall determine the
4-14 (1973). This regulation established both
matter de novo, and may examine the contents
substantive criteria and procedural require-
of such agency records in camera to determine
ments. See id. at 7. Thus, assuming the Hil-
whether such records or any part thereof shall
lenkoetter statement was classified originally in
be withheld
1948, discovery was necessary to determine
$ $ 1(b)(2), 88 Stat. 1562 (1974); Pub.L.No.93-502, see also H.R.
whether these substantive criteria and proce-
Rep.No.1380, 93d Cong., 2d Sess., 2, 12 (1974).
dural requirements were followed.
18. FOIA's first exemption Immunizes from dis-
20. See also Schaffer V. Kissinger, supra.
closure those matters that are
In Halperin, we did not hold that the docu-
(A) specifically authorized under criteria
ment in question necessarily had to be dis-
established by an Executive order to be kept
closed to plaintiff. Rather, we remanded the
secret in the interest of national defense or
case to the district court for a determination of
foreign policy and (B) are in fact properly
classified pursuant to such Executive order.
whether disclosure would "do grave damage to
5 U.S.C. $ 552(b)(1) (1976).
the national security
Id, 184 U.S.
19. The record reveals only that the Hillenkoet-
App.D.C. at 131, 565 F.2d at 706. The decision
to remand was made reluctantly:
ter statement was prepared in April, 1948. At
Having failed to follow the procedures es-
that time, there was no Executive Order in
tablished by their own branch of government,
existence governing all security classifications.
The first such Order was issued in 1950 by
appellants ask us in effect to save them from
the consequences of that failure by providing
364
607 FEDERAL REPORTER, 2d SERIES
B. Exemption Three
ment of the Air Force V. Rose, 425 U.S. 352,
In the case of exemption three the dis-
374, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and
trict court must determine whether the ma-
places the disclosure decision squarely in
terial withheld is specifically exempted
the hands of the CIA."
from disclosure by statute. I have no quar-
Our decisions establish that in national
rel with the court's holding that 50 U.S.C.
security cases as in all others, summary
§§ 403(d) and 403g specifically require that
judgment is proper without discovery or in
"intelligence sources and methods" be kept
camera inspection only if the agency has
secret. Maj. op. at
of 197 U.S.
submitted an itemized index that "subdi-
App.D.C., at 349-350 of 607 F.2d. I be-
vide[s] the document under consideration
lieve the court is mistaken, however, in
into manageable parts cross-referenced to
eschewing "discovery or in camera inspec-
the relevant portion of the Government's
tion to test for the presence of segregable,
justification." Vaughn V. Rosen, supra, 157
non-exempt material" on what is essentially
U.S.App.D.C. at 347, 484 F.2d at 827. See
the ground that "the Agency has already
also Weissman V. CIA, 184 U.S.App.D.C.
segregated and released 80% of the Hillen-
117, 123, 565 F.2d 692, 698 (1977) (as amend-
koetter statement to plaintiffs." Id. at
ed, April 4, 1977); Phillippi V. CIA, 178
n.65. This rationale violates the court's
U.S.App.D.C. 243 at 247, 546 F.2d 1009, at
statutory responsibility to undertake de
1013 (1977). Cf. Mead Data Central, Inc. V.
novo review for "reasonably segregable ma-
Department of the Air Force, 184 U.S.App.
terial," 5 U.S.C § 552(b) (1976); Depart-
D.C. 350, at 358-360, 566 F.2d 242 at 250-
an exemption the Congress did not create.
possibly have given the requisite de novo con-
The power of a court to refuse to order the
sideration to the question of substantive classi-
release of information that does not qualify
fiability.
for one of the nine statutory exemptions ex-
ists, if at all, only in "exceptional circum-
21. FOIA's third exemption immunizes from dis-
closure those matters that are
stances in which a court could fairly con-
clude that Congress intended to leave room
specifically exempted from disclosure by
for the operation of limited judicial discre-
statute
provided that such statute
tion." The need for this restriction on the
(A) requires that the matters be withheld
power of the courts is apparent here. A
in such a manner as to leave no
broad judicial power to refuse to order dis-
discretion on the issue, or (B) establishes
closure of non-exempt information that a
particular criteria for withholding or refers to
court feels would damage the national inter-
particular types of matters to be withheld.
est could obviously operate to frustrate the
5 U.S.C. § 552(b)(3) (1976).
requirements of FOIA.
22. The court asserts that "[e]xemption 3 differs
Id. 184 U.S.App.D.C. at 131, 565 F.2d at 706
from other FOIA exemptions in that its applica-
(citations omitted). Narrowly circumscribing
its discretion, we directed the district court to
bility depends less on the detailed factual con-
tents of specific documents
be "guided by an exacting standard similar to
Maj.
that suggested in Near V. Minnesota, [283 U.S.
op. at - of 197 U.S.App.D.C., at 350 of 607
697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)]."
F.2d. On the contrary, the applicability of this
Halperin, 184 U.S.App.D.C. at 132, 565 F.2d at
exemption, like any other, depends entirely on
707. See also Tax Analysts & Advocates V.
whether the factual contents of the particular
IRS, 164 U.S.App.D.C. 243, 248, 505 F.2d 350,
materials withheld are such that the statutory
355 (1974); Getman V. NLRB, 146 U.S.App.
criteria for nondisclosure are satisfied. The
D.C. 209, 450 F.2d 670, 678 (1971); Soucie V.
sole difference between exemption three and
David, 145 U.S.App.D.C. 144, 154, 448 F.2d
other FOIA exemptions is that in the case of
1067, 1077 (1971).
exemption three, these criteria are not provided
In this case, as in Halperin, since the agency
by the FOIA itself but by other statutes. For
failed in reclassifying the Hillenkoetter state-
example, in the present case the relevant crite-
ment to follow the procedures necessary to
ria are established by the National Security Act
give exemption one effect, there is no need to
of 1947, 50 U.S.C. § 403(d)(3), and the Central
address the question whether the reclassifica-
Intelligence Act of 1949, 50 U.S.C. $ 403g. I
tion satisfied the substantive criteria contained
should note that the court appears to realize as
in Executive Order No. 11652. I should note,
much, and later states that the "withheld mate-
however, that for want of an itemized index of
rial [must be included] within [the exempting]
the contents of the Hillenkoetter statement, see
statute's coverage." Maj. op. at - of -
Part III(B) infra, the district court could not
U.S.App.D.C., at 350 of 607 F.2d.
GOLAND V. CENTRAL INTELLIGENCE AGENCY
365
Cite as 607 F.2d 339 (1978)
252 (1977). Such an index, as I discussed
graphs in the [Hillenkoetter] statement."
earlier, "can
be subjected to crit-
Brief for Appellants at 33. For want of an
icism by the party seeking the document.
itemized index, it is impossible to determine
If in camera examination of the document
whether all nondisclosed portions of the
is still necessary, the court will at least have
statement have been described, much less
the benefit of being able to focus on the
properly withheld.
issues identified and clarified by the adver-
sary process." Phillippi V. CIA, supra, 178
IV. THE CIA'S SEARCH FOR
U.S.App.D.C. at 247, 546 F.2d at 1013;
RESPONSIVE DOCUMENTS
Vaughn V. Rosen, supra, 157 U.S.App.D.C.
The court refuses to permit plaintiffs to
346-48, 484 F.2d at 826-828. See also
conduct discovery pertinent to the scope of
S.Rep.No.93-854, 93d Cong., 2d Sess., 14-15
the CIA's search for "legislative history" on
(1974).
the ground that affidavits submitted by the
The affidavit filed here by the CIA, quot-
agency reveal as a matter of law that the
ed in part in the court's opinion at 21,
search was thorough. The majority empha-
plainly fails to supply the information nec-
sizes the assertion by the agency's Informa-
essary to facilitate the adversary process
tion and Privacy Coordinator that the "CIA
and de novo review. First, the affidavit
'interpreted [plaintiffs'] request broadly
speaks for the most part only of intelligence
enough to ensure that [it] would locate all
"devices," "sources," "methods," and "oper-
documents within the scope of the request."
ations." Essentially it parrots the language
Maj. op. at - of 197 U.S.App.D.C., at
of the exempting statutes, 50 U.S.C.
353 of 607 F.2d; J.A. at 78. The majori-
§§ 403(d)(3) ("intelligence sources and
ty states that "the Agency's good faith
methods") and 403g (intelligence "func-
would not be impugned unless there were
tions"), rather than providing the detailed
some reason to believe that [additional re-
description the "requesting party [needs] to
sponsive] documents could be located with-
present its case effectively," Mead Data
out an unreasonably burdensome search."
Central, Inc. V. Dept. of the Air Force, 184
Maj. op. at --- of 197 U.S.App.D.C., at
U.S.App.D.C. 350 at 359, 566 F.2d 242 at 251
353 of 607 F.2d. Finding that the CIA
(1977); Vaughn V. Rosen, supra, 157 U.S.
did, in fact, act in good faith, the court
App.D.C. at 343-44, 484 F.2d at 823-24, 828,
refuses to reach plaintiffs' contention that
and a reviewing court requires to make an
the agency's definition of "agency records,"
independent evaluation of an agency's ex-
32 C.F.R. § 1900.3(g) (1976),24 is unduly
emption claims." Second, as plaintiffs
narrow and may have served as an imper-
point out, the affidavit "makes no effort to
missible basis for withholding otherwise re-
match its assertions to given pages or para-
sponsive documents. Maj. op. at
23. My colleagues find that the affidavit "could
cially in national security cases, for the District
not have been much more detailed without
Court to inspect withheld documents, or at
"compromis[ing] the secret nature of the infor-
least a reasonable sample thereof, in camera.
mation." Maj. op. at - of 197 U.S.App.
But compare Weissman V. CIA, supra, 184 U.S.
D.C., 352 of 607 F.2d (quoting from Vaughn V.
App.D.C. 122, 565 F.2d at 697 ("in camera
Rosen, supra, 157 U.S.App.D.C. at 346-47, 484
proceedings are particularly a last resort in
F.2d at 826-27). This may be true. An affida-
'national security' situations.").
vit couched essentially in the language of the
exempting statute, however, is plainly of no
24. The CIA's definition excludes certain (1)
more usefulness to plaintiffs or the court than
"[i]ndex, filing, and museum documents;" (2)
an affidavit simply declaring that the withheld
material qualifies for a particular exemption.
"[r]outing and transmittal sheets and notes;"
If for some reason agencies must be especially
(3) "[b]ooks, newspapers, magazines, and simi-
guarded in describing withheld material in so-
lar publications;" (4) "[d]ocuments and rec-
called "national security" cases, the indexing
ords prepared or originated by [other]
requirement may not provide an adequate
agenc[ies];" and (5) "[d]ocuments and records
means in such cases of ensuring that the adver-
furnished by foreign governments
on
sary process works and of facilitating de novo
the understanding
[that they be] kept
review. It may therefore be necessary, espe-
in confidence."
366
607 FEDERAL REPORTER, 2d SERIES
of 197 U.S.App.D.C., at 355-356 of 607
der-inclusive." Such discovery, of course,
19
F.2d.
might have led the parties to agree on an
do
The court may well be correct in conclud-
appropriate search. At a minimum, such
de
ing that the CIA has acted in good faith,
discovery would have enabled plaintiffs to
he
and that its search was thoroughly respon-
reformulate their request to eliminate con-
ty
sive to plaintiffs' request. My disagree-
fusion and the possibility of future lawsuits.
ag
ment, again, concerns not the substance but
Also, such discovery would have revealed
do
the timing of the judgment in favor of the
whether the persons conducting the search
ev
did in fact withhold otherwise responsive
dis
agency.
As I understand plaintiffs' position, al-
documents on the basis of the CIA's defini-
though they do raise questions about the
tion of "agency records." If so, the ques-
CIA's good faith," the real issue here con-
tion would arise whether that definition is
cerns the scope the agency attributed to the
permitted by the FOIA.
ma
term "legislative history." Clearly, wheth-
se
er or not the CIA acted in good faith, its
V. ATTORNEY'S FEES
ter
understanding of "legislative history"
Plaintiffs claim to be entitled to an
na
shaped its search for responsive documents.
award of attorney's fees on the ground that
tic
It is not enough for the CIA simply to state
the CIA produced several documents only
308
that it "interpreted the request broadly."
after this litigation was instituted." The
with
Without discovery of the precise definition
court rejects this claim in part because
tor
employed by the persons who conducted the
plaintiffs have not shown the required
reg
search, plaintiffs were in no position to
"causal nexus between their litigation and
not
argue effectively that the search was un-
the CIA's disclosure." Maj. op. at - of
ple
25. Plaintiffs point out that on March 10, 1976,
Government employee to locate the requested
-
six weeks after their complaint had been filed
records." S.Rep.No.813, 89th Cong., 1st Sess.
in district court and nearly five months after
8 (1965). See also Sears V. Gottschalk, 357
their original FOIA request had been filed with
F.Supp. 1327 (D.C.Va.1973). To require more
the CIA, they received notification that the
(
specificity would be futile, particularly where,
agency had conducted a subsequent search and
as here, the requestor does not know whether
"recently identified" additional responsive doc-
I
or to what extent responsive documents exist.
uments that "had not previously been located."
Moreover, FOIA's legislative history reveals
BA
Brief for Appellants at 4-7; John F. Blake let-
that the requirement that a request identify the
ter, J.A. at 129. They contend that the CIA's
P
records sought, 5 U.S.C. § 552(a)(3), is "not to
delay in responding to their request raises an
be used as a method of withholding records."
T
inference of bad faith that justifies discovery
with respect to the scope of the search. Brief
S.Rep.No.813, supra, at 8, Accord, Bristol-
sion
for Appellants at 20. At least one district court
Myers Co. V. FTC, 138 U.S.App.D.C. 22, 25, 424
of 1
judge would apparently agree with them. See
F.2d 935, 938 (1970). See also Attorney Gener-
al's Memorandum, supra note 9, at 24. It fol-
Wh
Ass'n of National Advertisers, Inc. V. FTC, 38
Ad.L.2d 643 (D.D.C. April 1, 1976) (production
lows that ambiguity resulting from imperfect
tion
of additional documents after six-month delay
information should not be used as a justifica-
but
"presents a substantial issue of the complete-
tion for prohibiting the discovery necessary to
time
ness of the agency search." Id. at 645).
make the FOIA work.
In this case I would not cripple plaintiffs'
argi
26. The court rejects the need for discovery of
right to access to agency records because there
Fre
the definition of "legislative history" employed
is ambiguity in their request. What they ap-
docu
by the agency in its search because this is the
parently seek is any and all information in
"term plaintiffs used, and if any ambiguity was
afte
whatever form pertaining to the CIA's organic
introduced thereby plaintiffs must reap what
statutes. Yet a request so formulated would
mar
they have sown." Maj. op. at - of 197 U.S.
provide agency employees with scarcely any
mak
App.D.C., at 355 of 607 F.2d.
more guidance than one for "legislative histo-
rally
I submit that this view is at war with the
ry." The problem, quite simply, is that plain-
purposes of the FOIA. A FOIA request may of
ing.
tiffs do not know what form such information
necessity be based on imperfect information-
will take, or where it might be located in the
inter
or none at all-about the particular agency's
CIA's files. I would rely on the discovery proc-
time
methods of classifying and filing information.
ess to eliminate such a problem.
FOIA's legislative history acknowledges the
argt
problem, indicating that a request must supply
27. J.A. at 129. See note 25 supra.
only "a reasonable description enabling the
GOLAND V. CENTRAL INTELLIGENCE AGENCY
367
Cite as 607 F.2d 339 (1978)
197 U.S.App.D.C. at 356 of 607 F.2d. I
our judgment, save on the question of at-
do not disagree with the court's legal stan-
torneys' fees. With respect to that ques-
n
"dard. What concerns me, however, is that
tion, we remand to the district court to
here again plaintiffs have had no opportuni-
reconsider its ruling in light of the altered
o
ty to make their case. A showing of an
circumstances of this case.
agency's subjective reasons for producing
documents is difficult to accomplish at all
ed
I. FACTS
events. It is virtually impossible without
ch
We issued our opinion on 23 May 1978,
discovery.
affirming the district court's grant of sum-
hi-
mary judgment to the CIA. On 30 May
VI. CONCLUSION
d
1978, a week after the issuance of our opin-
is
In a recent FOIA case Judge Wilkey re-
ion, the CIA informed the Justice Depart-
marked that "[t]he data which plaintiff
ment that it had found hundreds of addi-
seeks to have produced
are mat-
tional documents that might be responsive
ters of interest not only to him but to the
to plaintiffs' FOIA request. The Depart-
an
"nation." Weisberg V. Department of Jus-
ment promptly informed plaintiffs and this
tice, 177 U.S.App.D.C. 161 at 164, 543 F.2d
court of CIA's discovery. On 6 June 1978
aly
308 at 311 (1976). This observation applies
plaintiffs filed a petition for rehearing and
"he
with particular force to the legislative his-
suggestions for rehearing en banc.¹
"tory underlying the creation of the CIA. I
On 14 June 1978 the CIA released to
regret that an issue of such importance has
plaintiffs' counsel thirty of the additional
and
not been resolved in accordance with princi-
documents. In an accompanying letter the
of
ples of summary judgment.
Agency stated that, even though it did not
believe that all of the documents fell within
On Appellants' Motion to Vacate and
plaintiffs' FOIA request, it was releasing
357
Petition for Rehearing
them anyway to assist plaintiffs' scholarly
Opinion PER CURIAM.
research. The letter explained further
that:
Dissenting opinion filed by Circuit Judge
BAZELON.
[m]ost of these documents were discover-
eais
ed late last fall, and additional documents
the
*PER CURIAM.
earlier this year, by the librarian of the
to
This petition for rehearing was occa-
Office of General Counsel. She discover-
stol-
tioned n by an inexcusable lapse on the part
ed all of these documents which were
424
the Central Intelligence Agency (CIA).
unindexed, in the course of her indepen-
While litigating the appeal whose disposi-
dent research on legal projects unrelated
fol-
tion is here questioned, the CIA discovered
to the Goland case. Although a sampling
but failed to disclose within any reasonable
of the documents last fall revealed their
to
time hundreds of documents which were
possible relevance to Goland, it was not
rarguably responsive to plaintiff-appellants'
until late May 1978, when a partial list of
Freedom of Information Act request. The
the documents was completed by the law
ap-
documents' existence was not revealed until
librarian, that the extent of the docu-
in
after we issued our decision, affirming sum-
ments, and the significance of some of
anic
mary judgment for the CIA. The failure to
the documents to the Goland FOIA re-
any
stake the disclosure plainly called for natu-
quest, were fully appreciated.
ink. rally casts a cloud over the entire proceed-
The following week, on 23 June 1978, the
Nain-
ation
Nevertheless, and without the barest
CIA released to plaintiffs' counsel an addi-
the
Intention of countenancing the CIA's un-
tional 291 documents. Also on that date
proc-
timely disclosure, on analysis of the issues
frgued and decided, we decline to disturb
CIA's associate general counsel, Ernest
Mayerfeld, wrote the Justice Department to
1. The effect of this timely petition has been to suspend issuance of our mandate.
368
607 FEDERAL REPORTER, 2d SERIES
explain the circumstances surrounding the
noted that during this period she was
Agency's discovery and release of additional
engaged in a major reorganization of the
C
documents:
law library which incidentally also en-
C
Most of these documents were discover-
tailed a physical move from one location
to
ed last fall by the Office of General
to another. Also, although the Table of
by
Counsel librarian in the course of exten-
Organization of the Office of General
ha
sive research on two projects unrelated to
Counsel called for an assistant law librar-
pe
the Goland litigation. Many of these doc-
ian, no one was appointed to that position
ci
uments were found in a CIA installation
until March 1978. The law librarian first
m
outside of Washington where inactive
completed a partial inventory of the addi-
ed
records are kept, only after great dili-
tional documents on May 19, 1978 and
gence and persistence by the librarian in
shortly thereafter it was decided that all
si
connection with her research. She be-
the newly-found documents would be re-
da
came aware of the existence of these
leased, subject to FOI[A] deletions, and
in
documents, which had been stored in
you were immediately informed.
fe
cardboard boxes and had not been organ-
ized in any fashion, as a result of several
This, then, appears to be the sequence of
main
co
interviews with current and former CIA
events: (1) The district court granted sum-
employees conducted in connection with
mary judgment to the CIA on 26 May 1976.
Pl
her research projects. These documents
(2) Plaintiffs filed their notice of appeal on
ed o
were not indexed and could not have been
23 July 1976. (3) In November or Decem-
first,
found under normal FOIA search proce-
ber 1977-while this appeal was still pend-
docu
dures.
ing but more than a year-and-a-half after
fact
I can state most emphatically that
the district court's decision-the CIA dis-
of t]
there was no intent within the CIA to
covered additional documents, some of
read
conceal the fact that these documents had
which arguably fell within the scope of
that
been found. The librarian, who had some
plaintiffs' FOIA request. (4) Failing to in-
to pl
personal familiarity with the Goland case
form plaintiffs, the Justice Department, or
three
and thus recognized that some of the
this court of the discovery, the CIA under-
23 M
documents which she had found might
took a sluggish four-month examination of
have some bearing on the Goland litiga-
the documents. (5) It was not until a week
tion, immediately (i. e. in late November
after we issued our 23 May 1978 decision
In
or early December 1977), informed the
that CIA finally revealed its discovery and
separ
General Counsel, the Deputy General
began releasing the documents.
was I
Counsel and the undersigned. Because at
Contending that this sequence of events
a con
that time the documents had not been
completely undermines the basis of our 23
main
organized or analyzed, and because it was
not immediately apparent which if any
May decision, plaintiffs have now filed a
that
were within the scope of the FOIA re-
motion summarily to vacate that decision.2
of th
quest in Goland, the General Counsel in-
Plaintiffs' motion states in pertinent part:
pursu
that,
structed the librarian to begin to organize
The majority opinion affirmed the dis-
docur
these documents and segregate from
trict court decision based on CIA affida-
reque
among them those documents which qual-
vits. It appears that these affidavits are
court
ified for designation as "legislative histo-
incorrect.
[T]he CIA has now
out d
ry."
produced
additional documents
that
The law librarian proceeded with her
"discovered late last fall and additional
ords"
assigned task, but her extensive involve-
documents earlier this year." Moreover,
plain
ment in other routine duties prevented
[the CIA] concedes that "a sampling of
torne
her completing this task as expeditiously
the documents last fall revealed their pos-
as might have been desired. It should be
sible relevance to Goland
Af
tenti
2. The motion was filed 16 June 1978-between
1978 and its release of 291 documents on 23
the CIA's release of 30 documents on 14 June
June 1978.
GOLAND V. CENTRAL INTELLIGENCE AGENCY
369
Cite as 607 F.2d 339 (1978)
No explanation has been offered by the
the discovery and belated disclosure of the
CIA or the Justice Department for the
documents, we find no occasion to disturb
CIA's strategy decision to stand mute as
our affirmance as to issues (1) through (4),
to the status of the affidavits relied upon
but we do vacate that part of our decision
by the Court until after the decision was
affirming the denial of attorneys' fees and
handed down on May 23. Indeed, it ap-
remand to the district court for reconsidera-
pears the CIA chose to withhold this cru-
tion of that issue.
cial information from the Justice Depart-
ment until after such decision was hand-
A. Thoroughness of Search Issue
ed down
Based on these admissions and conces-
We based our determination of the
sions
it should now be abun-
"search" issue, as did the district court, on
dantly clear that discovery is appropriate
three affidavits of Gene F. Wilson, the
in this case and in any event, attorneys'
CIA's Information and Privacy Coordinator.
fees should be awarded because of the
We concluded "that Wilson's sworn affida-
manner in which the CIA has chosen to
vits on their face are plainly adequate to
conduct itself in this litigation.
demonstrate the thoroughness of the CIA's
Plaintiffs' contention seems to be ground-
search for responsive documents. The affi-
ed on three distinct facts or occurrences:
davits give detailed descriptions of the
first, the fact that additional responsive
searches undertaken, and a detailed expla-
documents were found to exist; second, the
nation of why further searches would be
fact that CIA delayed informing this court
unreasonably burdensome."
of the documents until the court had al-
ready issued its decision; and third, the fact
1. Plaintiff's Theory
that CIA ultimately released the documents
Plaintiffs contend that the discovery of
to plaintiffs. Plaintiffs believe that these
additional documents indicates that the CIA
three facts warrant vacating the decision of
23 May 1978, at least in part.
affidavits in this case, relied upon by both
the district court and this court, "are incor-
rect." Therefore, they argue that we
II. DISCUSSION
should vacate our decision, or at least that
In our 23 May decision we resolved five
portion of the decision dealing with the
separate issues. We held: (1) that the CIA
"search" issue, because it was predicated on
was not required under the FOIA to release
inaccurate affidavits. We disagree.
a congressional hearing transcript that re-
mained under the control of Congress; (2)
[12, 13] As a substantive matter, the
that the CIA had properly deleted portions
mere fact that additional documents have
of the so-called "Hillenkoetter Statement"
been discovered does not impugn the accu-
pursuant to Exemption 3 of the FOIA; (3)
racy of the Wilson affidavits. The issue
that, on the record, the CIA's search for
was not whether any further documents
documents responsive to plaintiffs' FOIA
might conceivably exist but whether CIA's
request was adequate and that the district
search for responsive documents was ade-
court's grant of summary judgment with-
quate. The Wilson affidavits never stated
out discovery was within its discretion; (4)
that no further documents existed; they
that the CIA's definition of "agency rec-
merely described the scope of the searches
ords" was not in controversy; and (5) that
that had been undertaken and stated that
plaintiffs' counsel were not entitled to at-
no additional documents could be located
torneys' fees.
absent an extraordinary effort not required
After carefully reviewing plaintiffs' con-
by the FOIA. As we indicated in our opin-
tentions and the circumstances surrounding
ion, an agency is required only to make
3. Maj. opin. at - of 197 U.S.App.D.C., at 353 of 607 F.2d.
370
607 FEDERAL REPORTER, 2d SERIES
reasonable efforts to find responsive mate-
a final judgment. The occasions when new-
ry
rials; 4 it is not required to reorganize its
ly discovered evidence or changed circum-
th
filing system in response to each FOIA
stances will warrant setting aside a final
va
request. The circumstances surrounding
judgment are limited procedurally as well
dis
the discovery of additional documents as
as substantively.
we
described in CIA's letters of 14 and 23 June
do not contradict the statements made in
I
2. Applicable Principles of Appellate Re-
the Wilson affidavits. According to CIA,
fin
view
the discovery of these documents was en-
evi
tirely adventitious. They were found by
[15, 16] A final district court judgment
the
the law librarian in the course of indepen-
may be altered on direct review only
on
dent research on projects unrelated to the
through two procedures.⁵ One, of course, is
the
Goland litigation. The documents were not
the present appeal. The other is a motion
of
indexed; they were found, only after extra-
in district court for relief from the judg-
era
ordinary effort, stored in cardboard boxes
ment under federal rule 60(b).6 Appellate
ma
primarily among the 84,000 cubic feet of
review is ordinarily unaffected by matters
pro
documents at CIA's retired-records center
not contained in the record.⁷ This we think
ed
is the case with the facts disclosed here,
reli
outside of Washington. According to CIA,
the documents "could not have been found
whether characterized as "newly-discovered
cou
under normal FOIA procedures." Thus, it
evidence" or "changed circumstances." In
of
would appear that the new facts before us
neither event do the disclosures warrant
I
now do not really conflict with the facts as
vacating our judgment.
sur
presented to the district court and reflected
rele
in the record upon which our decision was
[17] The fact that additional documents
nea
based, and would not, as a substantive mat-
exist, insofar as it is probative of the thor-
es."
ter, prompt us to vacate our affirmance.
oughness vel non of the search, is rather
in v
plainly "newly discovered evidence." We
noti
[14] Concededly, the discovery of addi-
have found no case in which the Supreme
case
tional documents is more probative that the
Court or q court of appeals has granted a
sent
search was not thorough than if no other
rehearing or vacated its opinion based on
exa
documents were found to exist. Moreover,
newly discovered evidence. The reason for
ing
the delay in disclosing the documents at
this should be self-evident: an appellate
vers
least arguably evidences a lack of vigor, if
opinion is based on the record before it, and
the
not candor, in responding to FOIA requests.
hence cannot be set aside on the basis of
alter
newly discovered facts outside the record.
tech
However, a disappointed litigant may not
Her
avail herself of every imaginable inference
This rule is clear in the Supreme Court's
from newly disclosed facts in order to upset
cases, dating from those in the last centu-
9. 1
36
4. Maj. opin. at - of 197 U.S.App.D.C., at
Korn V. Franchard Corp., 456 F.2d 1206, 1208 &
V.
352 of 607 F.2d.
n.3 (2d Cir. 1972); In re Gulf Aerospace Corp.,
449 F.2d 733, 734 (5th Cir. 1971); and, in limit-
10.
5. See Carr V. District of Columbia, 177 U.S.
App.D.C. 432, 439, 543 F.2d 917, 924 (1976).
ed cases, facts which may be judicially noticed,
17,
e. 8., Landy V. Federal Deposit Insurance Corp.,
11.
6. Fed.R.Civ.P. 60(b).
486 F.2d 139, 150-51 (3d Cir. 1973), cert. de-
nied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d
12.
7. There are a number of settled exceptions to
312 (1974).
the
this general principle of appellate review; as,
for example, where there is an intervening
app
8. See, e. 8., Carr V. District of Columbia, 177
und
change in a pertinent law, e. g., Gomez V.
U.S.App.D.C. 432, 436, 543 F.2d 917, 921
cov
Wilson, 155 U.S.App.D.C. 242, 247-48, 477
(1976); AG Pro, Inc. V. Sakraida, 481 F.2d 668,
at
F.2d 411, 416-17 (1973); changed circumstanc-
669 (5th Cir. 1973), rev'd on other grounds, 425
Mil
es which render the controversy moot, e. B.,
Wirtz V. Local Union 410, 366 F.2d 438, 442 (2d
U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976);
& I
Cir. 1966); changed circumstances which alter
Davis V. Casey, 70 App.D.C. 27, 34-35, 103
cas
the appropriateness of injunctive relief, e. B.,
F.2d 529, 536-37 (1939).
clos
-
GOLAND V. CENTRAL INTELLIGENCE AGENCY
371
Cite as 607 F.2d 339 (1978)
ry to the recent Standard Oil case 10 where
probative of the same contentions as arose
new-
the Court refused to recall its mandate and
from the mere existence of the documents
circum-
a
final
vacate its opinion on the basis of newly
(i. e., that the search was not conducted
well
discovered facts, stating that its opinion
thoroughly or in good faith). Consequently,
as
was confined to the record.
for purposes of appellate review of these
allegations, we think nothing turns on the
[18-20] An appellate court has no fact-
arguable distinction between newly discov-
Re-
finding function. It cannot receive new
ered evidence and altered circumstances.
evidence from the parties, determine where
Under either theory the proper course ordi-
udgment
the truth actually lies, and base its decision
narily would be to proceed in the first in-
only
on that determination. Factfinding and
stance in district court under rule 60(b).
the creation of a record are the functions
course,
is
of the district court; therefore, the consid-
a
motion
[21] Finally, inasmuch as relief in dis-
judg-
geration of newly-discovered evidence is a
the
trict court may be foreclosed,¹³ it might be
matter for the district court. The proper
Appellate
thought that this court, in the exercise of
procedure for dealing with newly discover-
matters
ed evidence is for the party to move for
our appellate jurisdiction, should remand
we
think
for further proceedings in light of the new
relief from the judgment in the district
here,
facts without regard to the strictures of
court under rule 60(b) of the Federal Rules
discovered
of Civil Procedure.
rule 60(b). Some support may be found for
In
the proposition in the broad language of 28
warrant
Insofar as plaintiffs rely on the facts
U.S.C. § 2106, which provides:
turrounding the documents' discovery and
The Supreme Court or any other court of
release by the CIA, their argument is more
"nearly dependent on "changed circumstanc-
appellate jurisdiction may affirm, modify,
documents
a". To be sure, there are occasional cases
vacate, set aside or reverse any judg-
the
thor-
is
rather
in which altered circumstances are properly
ment, decree or order of a court lawfully
We
noticed on appeal.¹ Invariably in such
brought before it for review, and may
Supreme
cases, however, events have altered the es-
remand the cause and direct the entry of
sential nature of the controversy, as, for
such appropriate judgment, decree, or or-
granted
a
based
example, where there has been an interven-
der, or require such further proceedings
on
for
Ing change in the law or where the contro-
to be had as may be just under the cir-
reason
Persy has become moot. But in this case
cumstances.¹⁴
appellate
fore
and
the distinction between new evidence and
This court recently reserved the question
it,
basis
of
altered circumstances is largely a matter of
whether section 2106 afforded an alternate
record.
technical usage rather than substance.¹²
way of reopening a final judgment in light
he
Court's
Here the intervening events are allegedly
of new facts. 15 Although our research has
last
centu-
E 8. Maxwell Land-Grant Case, 122 U.S.
tion for purposes of rule 60(b). Moreover, the
365. 7 S.Ct. 1271, 30 L.Ed. 1211 (1887); Roemer
exercise of our discretion is likewise uncon-
1208
&
k Simon, 91 U.S. 149, 23 L.Ed. 267 (1875).
fined by the "correct" rule 60(b) characteriza-
space
Corp.,
limit-
Standard Oil Co. V. United States, 429 U.S.
tion of these facts.
in
noticed.
17. 97 S.Ct. 31, 50 L.Ed.2d 21 (1976).
13. See pp.
of 197 U.S.App.D.C., 372-
Corp.,
de-
IL See note 7 supra.
373 of 607 F.2d infra.
cert.
40
L.Ed.2d
12 The distinction is ordinarily made between
these two grounds of relief for purposes of
14. 28 U.S.C. § 2106 (1976).
177
rules for filing motions
15. Carr V. District of Columbia, 177 U.S.App.
olumbia,
60(b). To be "newly dis-
917,
921
D.C. 432, 444 & n.96, 543 F.2d 917, 929 & n.96
must have been in existence
F.2d
668,
the time of the trial, see C. Wright & A.
(1976) (if it appeared relief were not otherwise
grounds,
425
Miller, & Federal Practice and Procedure s 2859
available, court would consider "whether the
784
(1976):
34-35,
103
use, the alleged substantive effect of the dis-
n.35 (cases cited) (1973). However, in this
interests of justice would not require [it] to
remand to the District Court to consider the
dosures is independent of their characteriza-
claim").
372
607 FEDERAL REPORTER, 2d SERIES
disclosed no case which has so held, we may
8. Relief in the District Court
suppose arguendo that we do have ample
Relief from a final judgment may
revisory power under section 2106 in appro-
sought in district court through a rule 60(b)
priate cases. We are nevertheless thor-
motion; 16 our decision not to vacate our
oughly convinced that this would not be a
affirmance is, of course, without prejudice
proper occasion for such extraordinary re-
to plaintiffs' proceeding under that rule.
lief. Nothing in the circumstances which
However, as we have noted, that approach d,
plaintiffs raise suggests to us that the dis-
may be difficult or wholly unavailable.
trict court judgment was incorrect. We are
Insofar as the additional documents are
satisfied by the submissions to this court
new evidence, recourse to rule 60(b) is gov.
that the original failure to uncover the doc-
erned (and apparently precluded) by the,
uments was wholly understandable and not
rule's strict timing requirements. There is
inconsistent with the district court's finding
an ironclad one-year limit on the filing of a
that the search was thorough.
rule 60(b) motion based on newly discovered
evidence. Such motions must be filed with-
Moreover, although the delay in releasing
in one year from the date the judgment was
the materials may not be excused, we do
entered in the district court, which in this
not think that that misconduct vitiates the
case was 26 May 1976-two years ago and
district court's finding either. Only were
more. The one-year period is not tolled by
we to indulge a fairly harsh inference as to
a pending appeal,¹⁷ and under the federal
the bona fides of the CIA would we be
rules no court has power to extend the
inclined to upset the judgment. The in-
deadline.
stant facts fall quite short of supporting
The one-year time limit in rule 60(b) ap-
any such conclusion. Consequently, wheth-
plies only to motions under clauses (1), (2),
er or not there is any possibility of relief
and (3), covering fraud between the parties,
from the judgment in district court, we
newly discovered facts, and misconduct of a
decline to disturb our affirmance respecting
party. There is also a catch-all clause (6),
the thoroughness of the search. We reach
covering "any other reason justifying relief
this conclusion fully aware that we deal
from the operation of the judgment."
here with a summary judgment whose fac-
There isno time limit for motions brought
tual basis derives from affidavits and with-
under this clause; however, relief under
out discovery.
this clause is nót available unless the other
16. Fed.R.Civ.P. 60(b) provides as follows:
year after the judgment, order, or proceeding
(b) Mistakes; Inadvertence; Excusable
was entered or taken. A motion under this
Neglect; Newly Discovered Evidence; Fraud,
subdivision (b) does not affect the finality of
etc. On motion and upon such terms as are
a judgment or suspend its operation. This
just, the court may relieve a party or his legal
rule does not limit the power of a court to
representative from a final judgment, order,
entertain an independent action to relieve a
or proceeding for the following reasons: (1)
party from a judgment, order, or proceeding,
mistake, inadvertence, surprise, or excusable
or to grant relief to a defendant not actually
neglect; (2) newly discovered evidence which
personally notified as provided in Title 28,
by due diligence could not have been discov-
U.S.C., § 1655, or to set aside a judgment for
ered in time to move for a new trial under
fraud upon the court. Writs of corant nobis,
Rule 59(b); (3) fraud (whether heretofore de-
coram vobis, audita querela, and bills of re-
nominated intrinsic or extrinsic), misrepre-
view and bills in the nature of a bill of re-
sentation, or other misconduct of an adverse
view, are abolished, and the procedure for
party; (4) the judgment is void; (5) the judg-
obtaining any relief from a judgment shall be
ment has been satisfied, released, or dis-
by motion as prescribed in these rules or by
charged, or a prior judgment upon which it is
an independent action.
based has been reversed or otherwise vacat-
17. Greater Boston Television Corp. V. FCC, 149
ed, or it is no longer equitable that the judg-
ment should have prospective application; or
U.S.App.D.C. 322, 334, 463 F.2d 268, 280
(6) any other reason justifying relief from the
(1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042,
operation of the judgment. The motion shall
32 L.Ed.2d 338 (1972); C. Wright & A. Miller,
be made within a reasonable time, and for
Federal Practice and Procedure § 2866, at 233
reasons (1), (2), and (3) not more than one
(1973).
GOLAND V. CENTRAL INTELLIGENCE AGENCY
373
Cite as 607 F.2d 339 (1978)
clauses, (1) through (5), are inapplicable."
trial the plaintiff must meet the same
It may be that a showing of changed cir-
substantive requirements as govern a mo-
b)
cumstances would bring plaintiffs within
tion for like relief under Rule 60(b): he
the residual 60(b)(6), although it is far from
must show that the evidence was not and
IF
certain either that the allegations are not
could not by due diligence have been dis-
covered by clauses (1) through (3) (in which
covered in time to produce it at trial;
case they would be time barred) or that
that it would not be merely cumulative;
they present the "extraordinary" circum-
and that it would probably lead to a
stances for which relief under 60(b)(6) is
judgment in his favor.
reserved.¹⁹
We merely note the difficulty of satisfying
[22,23] In any case, rule 60(b) contains
the "stringent" rules which circumscribe
a saving clause which states that the rule
the trial court's discretion in such matters;
"does not limit the power of a court to
our disposition does not, of course, foreclose
ed
entertain an independent action to relieve a
plaintiffs' bringing an independent suit for
party from a judgment, order or proceeding
relief.
as
" Thus the rule does not extin-
guish the historical authority of equity
B. The Hearing Transcript, the Hillen-
nd
koetter Statement, and the Defini-
courts to reform judgments in appropriate
by
cases.20 The one-year limit on certain of
tion of "Agency Records" Issues
the rule 60(b) motions is not applicable to
With respect to the congressional hearing
the independent action, leaving it, apart
transcript issue, we held in our 23 May
from collateral attack, as the only manner
decision that, given the circumstances of
p-
of obtaining relief from a judgment in
the transcript's creation, it "remains under
those cases where the 60(b) motion has be-
the control of and continues to be the prop-
come time barred. We recently recalled
erty of the House of Representatives." 23
that 'the exception for equitable interposi-
Thus, we concluded that "the Hearing
tion by independent suit rests on "strin-
Transcript is not an 'agency record' but a
gent" rules limited to circumstances "which
Congressional document to which the FOIA
"render it manifestly unconscionable that a
does not apply."
ht
judgment be given effect". Although
With respect to the Hillenkoetter State-
er
such circumstances may sometimes appear
ment issue, we held that the deleted por-
er
from evidence disclosed after the judgment,
tions of the Statement could properly be
such extraordinary review is not to be in-
withheld pursuant to FOIA Exemption 3,
is
dulged loosely. We have observed:
which was determined to encompass 50
in an independent action seeking relief
U.S.C. § 403(d)(3) and 50 U.S.C. § 403g.
to
from a judgment on the basis of newly-
Our analysis involved a two-step inquiry:
discovered evidence and asking for a new
(1) whether the CIA's nondisclosure stat-
18. Klapprott V. United States, 335 U.S. 601,
21. Carr V. District of Columbia, 177 U.S.App.
613, 69 S.Ct. 384, 93 L.Ed. 266 (1949); C.
D.C. 432, 442, 543 F.2d 917, 927 (1976) (quoting
Wright & A. Miller, Federal Practice and Proce-
Greater Boston Television Corp. V. FCC, 149
dure § 2864, at 217 (1973).
U.S.App.D.C. 322, 333, 463 F.2d 268, 279
(1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042,
19. See, e. 8., Ackermann V. United States, 340
32 L.Ed.2d 338 (1972)).
U.S. 193, 202, 71 S.Ct. 209, 95 L.Ed. 207 (1950);
Wright & A. Miller, Federal Practice and
22. Philippine Nat'l Bank V. Kennedy, 111 U.S.
Procedure § 2864 at 219-20 (1973).
App.D.C. 199, 200, 295 F.2d 544, 545 (1961)
(footnotes omitted).
20. See Advisory Committee Note to 1946
Amendment to Rule 60(b); West Virginia Oil &
23. Maj. opin. at - of 197 U.S.App.D.C., at
Gas Co. V. George E. Breece Lumber Co., 213
347 of 607 F.2d.
F.2d 702, 706 (5th Cir. 1954). The independent
action is, of course, to be distinguished from
24. Maj. Opin. at - of 197 U.S.App.D.C., at
the ancillary common law and equitable reme-
348 of 607 F.2d.
dies specifically abolished by rule 60(b).
374
607 FEDERAL REPORTER, 2d SERIES
utes-sections 403(d)(3) and 403g-are Ex-
CIA's discovery of new documents is ctr-
emption 3 statutes; and (2) whether the
cumstantial evidence that the Agency's af-
of
withheld materials, as described by CIA's
fidavits generally may not have been accu-
by
affidavit, fall within the nondisclosure stat-
rate.
on
utes.
Our reasoning with respect to the issue of
da
Finally, we refrained from reaching the
the search's thoroughness is fully applicable
da
definition of "agency records" issue because
here.2 We will not vacate our judgment
m
no live and genuine controversy remained
on the basis of such a tenuous theory. The
fr
on this matter between plaintiffs and CIA.
allegations raise no serious doubt as to the
we
correctness of the district court's findings.
re
[24] Neither the discovery of additional
documents, nor CIA's delayed disclosure of
Plaintiffs may nevertheless wish to seek
br
this discovery, nor CIA's ultimate release of
relief from the district court under rule
cir
the documents in any way undermines our
60(b) or otherwise. In the meanwhile, our
holdings on these three issues. The dis-
resolution of the Transcript, Statement, and
th
Definition issues must stand as originally
do
covery and release of new documents obvi-
ously does not change the character of the
stated in our 23 May decision.
ar
ne
Congressional Hearing Transcript. It re-
C. Attorneys' Fees Issue
af
mains a congressional record for the reasons
stated in our opinion, and as such was prop-
[25] In our 23 May decision we declined
pe
erly withheld by CIA. Similarly, the dis-
to award attorney's fees to plaintiffs, hold-
5.
covery and release of additional documents
ing that plaintiffs had not "substantially
clearly has no bearing on whether, as a
prevailed" even though the CIA had re-
matter of law, sections 403(d)(3) and 403g
leased the Vandenberg Statement and por-
tions of the Hillenkoetter Statement after
from
are Exemption 3 statutes or on whether
portions of the Statement fall within those
they commenced suit. We stated: "Even if
de
nondisclosure statutes. Finally, the circum-
plaintiffs could show some causal nexus be-
rel
stances of the discovery and release of new
tween their litigation and the CIA's disclo-
documents do not give rise to a controversy
sure, which they have not done, we doubt
th
between the parties as to CIA's definition
that plaintiffs could be said to have 'sub-
Ge
of "agency records."
stantially prevailed' if they, like Pyrrhus,
27.
Nevertheless, plaintiffs argue that the
have won a battle but lost the war."x
(
CIA's discovery of additional documents
Plaintiffs now contend that this aspect of
a
1
does, in a very remote sense, bear upon the
our decision has been undermined by subse-
-
validity of our holdings on the Transcript,
quent events. They point not to the CIA's
(
Statement, and Definition issues. They
discovery of additional documents or to the
1.
point out that our conclusions on these
Agency's delay in revealing this discovery,
I
t
three issues were, to varying extents, based
but rather to the fact that CIA ultimately
tu
partially upon assertions in CIA's affida-
released these additional documents. Plain-
(
vits. Thus, they argue that, since the dis-
tiffs' argument seems to be that there is
t
covery of new documents suggests that
the requisite causal connection between
r
o
CIA's affidavits may have been inaccurate
their prosecution of the action and ChA's
2.
in one respect, namely, the thoroughness of
ultimate release of further documents such
S
search issue, they may also have been inac-
as they may now be said to have "substan-
i
curate in other respects, namely on these
tially prevailed" in the litigation. The
80
other three issues. Therefore, plaintiffs ar-
Agency's release of documents occurred af-
1
i
gue, our decision on these points may have
ter the decision in this case. Thus, this part
6
rested on incorrect affidavits. In other
of plaintiffs' argument relies on a post-
di
words, plaintiffs' contention is that the
judgment change in factual circumstances.
3
25. See pp.
of 197 U.S.App.D.C., pp.
26. Maj. opin. at - of 197 U.S.App.D.C., at
(
369-374 of 607 F.2d supra.
356 of 607 F.2d. See 5 U.S.C. $ 552a(4)(E)
(1976).
n
GOLAND V. CENTRAL INTELLIGENCE AGENCY
375
Cite as 607 F.2d 339 (1978)
Of course, plaintiffs might move to re-
documents known to be relevant to plain-
open this particular issue in district court
tiffs' FOIA request had been discovered
by means of a rule 60(b)(6) motion. The
within the agency. Not until May 30, 1978,
one-year limit in rule 60(b) applies only to
one week after our opinion issued, and some
clauses (1) through (3); it does not apply to
six months after the documents were "dis-
clause (6) which authorizes relief from judg-
covered," did the General Counsel inform
ment for "any other reason justifying relief
the Justice Department that these docu-
from the operation of the judgment." As
ments had been found.¹ We must now de-
we have observed, one of the grounds for
termine the effect of these events on our
relief that has been recognized under this
previous disposition of this case. I believe
broad rubric is post-judgment change in
that both the disclosure of 321 additional
drcumstances.
documents and the circumstances surround-
However, in the interest of expediting
ing their discovery cast serious doubt on the
this matter and because we entertain little
original disposition of this case. I therefore
,doubt that the merits of the attorneys' fees
dissent from the majority's decision to leave
argument should be reheard in light of the
that opinion undisturbed. I concur, how-
new facts, we vacate that portion of our
ever, in the decision to remand for consider-
affirmance and the District Court judgment
ation of plaintiffs' right to attorney fees.
pertaining to fees and remand for the Dis-
trict Court's reconsideration.
So ordered.
I.
I begin my examination with a simple
BAZELON, Circuit Judge, dissenting
question-had the CIA seasonably revealed
from the denial of the motion to vacate, the
to us, prior to our decision, that it had
denial of rehearing, and the denial of
"discovered" 321 documents arguably with-
rehearing en banc.
in the scope of plaintiffs' request, would we
In November or December, 1977, while
nonetheless have issued the opinion of May
this case was pending before our panel, the
23? I have no difficulty in concluding that
General Counsel of the CIA learned that
we would not.3
27. See Scott V. Young, 307 F.Supp. 1005, 1007
on the majority's previous discussion of the
(E.D.Va.1969), aff'd, 421 F.2d 143 (4th Cir.),
adequacy of the CIA's search.
cert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26
L.Ed.2d 91 (1970); American Employers Ins.
Co. V. Sybil Realty, 270 F.Supp. 566, 569-70
3. We may assume, arguendo that an appellate
(E.D.La.1967).
court would be more reluctant to consider new
1. The Justice Department, acting with com-
evidence brought to its attention after its opin-
ion issued rather than before. Compare Stan-
mendable dispatch, appears to have informed
dard Oil Co. of California V. United States, 429
both plaintiffs and this court of the existence of
U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976) (deny-
additional documents on the same day that the
ing motion to recall mandate after decision on
CIA informed Justice. There is thus no sugges-
the basis of alleged misconduct by government
tion that the attorneys for the Justice Depart-
counsel and new evidence) with United States
ment departed in any way from their duties as
V. Shotwell (I), 355 U.S. 233, 241, 78 S.Ct. 245,
officers of this court.
251, 2 L.Ed.2d 234 (1957) (remanding for con-
2 I express no opinion herein concerning the
sideration of a "challenge to the integrity of the
significance of these disclosures on the "hear-
record based on newly discovered evidence").
ing transcript," the "Hillenkoetter statement"
But where, as here, the evidence was withheld
and the definition of agency records. I adhere
by the agency with full knowledge of its rele-
to the views expressed in my dissenting opin-
vance, the concern for finality is overridden by
ion. See Goland V. CIA, 197 U.S.App.D.C. -,
a need to prevent the agency from profitting by
dissenting) 607 F.2d 339 (D.C.Cir. 1978) (Bazelon, J.,
its misdeed. Therefore, I believe it is appropri-
at
of 197 U.S.App.D.C., at
ate to analyze the motion to vacate in terms of
358-362 of 607 F.2d (hearing transcript),
the effect that the CIA's revelations would have
1 of 197 U.S.App.D.C., 362-365 of 607 F.2d
had on this court, had that information been
(Hillenkoetter statement).
seasonably tendered before our decision.
For the purposes of this discussion I confine
Accordingly, this case comes in a different
my remarks to the impact of these disclosures
posture than Realty Acceptance Corp. V. Mont-
376
607 FEDERAL REPORTER, 2d SERIES
The jurisdiction of the federal courts is
existence of additional documents, it is in-
que
limited to cases or controversies.4 Central
conceivable to me that we would have been
in 1
to that provision is the requirement that
indifferent to the significance of the CIA's
of
the federal courts do not sit to give adviso-
admissions in assessing the adequacy of the
app
ry opinions," nor to render decisions which
original search. The majority rests its deci-
do
can offer no relief to any party. Here the
sion on the observation that "the mere fact
orig
plaintiffs sought all CIA records concerning
that additional documents have been discov-
not
the legislative history of the agency's gov-
ered does not impugn the accuracy of the
erning statute. As a result of the belated
Wilson affidavits." Maj. op. at - of 197
find
release of some 321 documents to plaintiffs
U.S
U.S.App.D.C., at 369 of 607 F.2d. To my
by the CIA, it may well be that plaintiffs
mind, this is a question of fact that cannot
mit
are fully satisfied that their request has
possibly be decided on the record before us.
vac
been honored' and no longer require fur-
The majority notes, "[a]ccording to CIA, the
fac
ther relief from this court on that issue.
discovery of these documents was entirely
B
If the plaintiffs are in fact satisfied, then
adventitious. They were found
by
any appeal from the denial of discovery is
only after extraordinary effort
ing
clearly moot. Because mootness would de-
Id. at - of 197 U.S.App.D.C., at 370 of
sur
prive this court of jurisdiction, we would be
607 F.2d. These representations may well
tior
obliged to note it, regardless of when dur-
be true. But the fact is that at this stage
fact
ing the course of the litigation the contro-
of the litigation they are simply ex parte
"or
versy became moot.8 I therefore find it
representations. Plaintiffs have had no op-
was
difficult to believe that we would not have
portunity to test these assertions under cir-
wo
inquired further into the issue of mootness,
cumstances that would admit of appropriate
sup
either by remanding to the district court for
findings of fact.
virt
a determination of that issue," or at least
The majority's extreme reluctance to per-
requiring further submission from the par-
10.
mit plaintiffs to explore the factual basis of
gi
ties.
the CIA's assertions thus repeats the basic
bu
error of the original panel opinion. The
ag
II.
A
majority again prematurely forecloses
Even assuming that there remained a live
plaintiffs' inquiry into the nature of the
11.
CIA's search in response to the FOIA re-
to
controversy between the parties over the
su
gomery, 284 U.S. 547, 52 S.Ct. 215, 76 L.Ed.
7. Of course, plaintiffs have not conceded the
as
c!
476 (1932), where the Court of Appeals' order
propriety of the CIA's decision to withhold cer-
23
remanding to the District Court to consider
tain documents or portions of documents pur-
(1
new evidence was entered after the Court of
suant to FOIA. See note 2, supra.
2-
Appeals lost jurisdiction of the case (by virtue
th
of its earlier order dismissing the appeal). See
8. See, e. g. Allee V. Medrano, 416 U.S. 802, 818
si
id. at 551-52, 52 S.Ct. 215.
n.12, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566
P
4. U.S.Const., Art. III, Sec. 2.
(1974): "In the federal system an appellate
si
court determines mootness as of the time it
La
considers the case, not as of the time it was
n
5. See e. 8., Golden V. Zwickler, 394 U. S. 103,
filed." See also Steffel V. Thompson, 415 U.S.
C
108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).
452, 459-60 & n.10, 94 S.Ct. 1209, 39 L9Ed.2d
d
505 (1974).
c
6. See, e. g., Preiser V. Newkirk, 422 U.S. 395,
H
401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975).
9. "There would certainly be no doubt of the
[A] federal court has neither the power to
need for a court remand if the change of cir-
L
render advisory opinions nor "to decide ques-
cumstances were such as to make the case
tions that cannot affect the rights of litigants
moot." Greater Boston Television Corp. V. F.
it
in the case before them." Its judgments
C. C., 149 U.S.App.D.C. 322, 337 n.25, 463 F.2d
r
must resolve 'a real and substantial contro-
268, 283 n.25 (1971), cert. denied, 406 U.S. 950,
9
versy admitting of specific relief through a
92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). Although
1
decree of a conclusive character, as distin-
Judge Leventhal there referred to review of
guished from an opinion advising what the
agency proceedings, the same jurisdictional
r
law would be upon a hypothetical state of
considerations apply to appellate review of a
facts." (Citations omitted.)
district court decision.
GOLAND V. CENTRAL INTELLIGENCE AGENCY
377
Cite as 607 F.2d 339 (1978)
quest." But the error is even more serious
remand this case to the district court to
in this case, for we do not have the benefit
determine the effect of these disclosures on
of a trial court judgment, entered after
the district court's prior decision upholding
appropriate inquiry, that these revelations
the adequacy of the CIA's initial search.¹¹
do not undermine the validity of the CIA's
original affidavits. The majority correctly
III.
notes that "[a]n appellate court has no fact-
finding function." Maj. op. at - of 197
I wish to make explicit the seriousness
U.S.App.D.C., at 371 of 607 F.2d. I sub-
with which I regard the CIA's dereliction in
mit that the majority denies the motion to
this case. I do not suggest that the CIA
failed to inform this court that it had dis-
vacate precisely because it has found the
facts against plaintiffs.
covered the documents simply to procure a
favorable decision (though this possibility
Both the volume of documents discovered
certainly cannot be rejected without a full-
$ by the CIA and the circumstances surround-
er factual inquiry into the circumstances
ing the initial withholding and later disclo-
surrounding these events). I do believe
sure of the documents raise serious ques-
firmly, however, that the CIA had a strict
tions that can only be resolved by a full
obligation to report this information to the
factual inquiry. The majority finds the
court at the moment its arguable relevance
"original failure to uncover the documents
became known.¹² This is central to the
was wholly understandable." Perhaps I
"unqualified duty of scrupulous candor that
would too, on a proper record. Under our
rests upon government counsel in all deal-
supervisory power, invested in this court by
ings" with the courts.¹³ The CIA's "ex-
virtue of 28 U.S.C. § 2106 (1976), I would
cuse" for this delay, that the matter was
10. As I noted in my earller dissent, "[m]y disa-
U.S.App.D.C. 144, 591 F.2d 753 (1978). How-
greement, again, concerns not the substance
ever, in Jordan we recognized that in unusual
but the timing of the judgment in favor of the
circumstances we might remand to the trial
agency." Dissenting op. at - of 197 U.S.
court (pursuant to § 2106) to permit considera-
App.D.C., at 366 of 607 F.2d.
tion of a FOIA exemption raised by the govern-
11. I entertain no doubt that we have the power
ment for the first time on appeal. In so observ-
to consider the impact of these disclosures pur-
ing, we recognized that the policies of FOIA
suant to § 2106, whether they are characterized
might outweigh the generalized interest in fi-
as "newly discovered evidence" or "changed
nality that normally confines our review to the
circumstances." See Patterson V. Alabama,
issues as presented in the trial court. If the
294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082
government, under some circumstances, is to
(1935); Gomez V. Wilson, 155 U.S.App.D.C.
be permitted to expand its arguments on ap-
242, 247-248, 477 F.2d 411, 416-17 (1973). Al-
peal to protect legitimate Interests in non-dis-
though typically this evidence should be con-
closure, surely it is equally consonant with the
sidered through a motion for a new trial, com-
principies of FOIA to permit one who requests
pelling circumstances justify this court con-
information to enlarge the record, especially
sidering such developments. Cf. Carr V. Dis-
where there is disturbing evidence of impro-
trict of Columbia, 177 U.S.App.D.C. 432, 444 &
priety by the government.
n.96, 543 F.2d 917, 929 & n.96 (1976) (where
consideration of new evidence time-barred un-
12. Had the CIA mistakenly failed to recognize
der Rule 60(b) and no other forum available to
the relevance of these documents, or had the
consider such evidence, court "would consider
librarian failed to inform the General Counsel
whether the interests of justice would not re-
of her discovery, different, and more difficult
quire" remand to district court pursuant to 28
issues would be posed. Here, however, the
U.S.C. $ 2106).
three top legal officers of the CIA withheld the
The possibility that the CIA has disregarded
fact that documents had been discovered which
its responsibilities under the Freedom of Infor-
they knew to be relevant to this litigation. I
mation Act presents a particularly appropriate
can imagine no clearer breach of duty to this
occasion for the exercise of our s 2106 authori-
court.
ty to require further proceedings. Under FOIA,
as with any litigation, we adhere to "the funda-
13. Shotwell Mfg. Co. V. United States (Shotwell
mental precept that issues on appeal are to be
II), 371 U.S. 341, 358, 83 S.Ct. 448, 459, 9
confined to those duly presented to the trial
L.Ed.2d 357 (1963).
court", Jordan V. Department of Justice, 192
378
607 FEDERAL REPORTER, 2d SERIES
given "insufficient priority," 14 is nothing
Senior Circuit Judge, held that primary
He
short of a confession that it has been dere-
jurisdiction over the issue was vested in the
with
lict in its duty to this court. Such behavior
Environmental Protection Agency where
ingto
is worthy only of censure.
proceedings had been commenced to issue
Cur
the sewage treatment plant a National
with
Pollution Discharge Elimination System per-,
KEY NUMBER SYSTEM
mit.
was o
urbar
Affirmed.
Rie
of M
Navigable Waters 35
Mary
Where Environmental Protection
giene
MONTGOMERY ENVIRONMENTAL CO-
Agency had commenced proceedings to is
Gover
ALITION CITIZENS COORDINATING
sue National Pollution Discharge Elimina-
Lou
COMMITTEE ON FRIENDSHIP
tion System permit to sewage treatment
W. B
HEIGHTS et al., Appellants,
plant, EPA was vested with primary juris-
Stiehl
V.
diction over issue whether sanitary commis-
C., for
WASHINGTON SUBURBAN SANITARY
sion had exceeded its allotted share of sew-
Bef
COMMISSION et al.
age treatment capacity of such plant, re-
sulting in violation of promulgated water
KEY,
No. 78-1730.
quality standards, and suit by citizens' envi-
Opi
United States Court of Appeals,
ronmental groups to enjoin sanitary com-
ON, o
District of Columbia Circuit.
mission from exceeding its share of sewage
treatment capacity would therefore be dis-
BA
Argued Jan. 3, 1979.
missed. Federal Water Pollution Control
For
Decided May 30, 1979.
Act Amendments of 1972, §§ 101 et seq.,
sion o
301, 301(a), (b)(1)(C), 303, 505(a)(1), (c)(1),
comple
33 U.S.C.A. §§ 1251 et seq., 1311, 1311(a),
tal Co
Citizens' environmental groups brought
(b)(1)(C), 1313, 1365(a)(1), (c)(1).
the W
suit to enjoin a sanitary commission from
missio
exceeding its allotted share of the sewage
share
treatment capacity at a sewage treatment
the B
plant. The United States District Court for
(Blue
the District of Columbia, John Lewis Smith,
Appeal from the United States District
flows
Jr., J., dismissed the action, and plaintiffs
Court for the District of Columbia. (D.C.
charge
appealed. The Court of Appeals, Bazelon,
Civil Action No. 1307-73).
which
14. The full text of the CIA's explanation is as
tainty to what extent the documents found
the P
follows:
by the law librarian were relevant to this
for th
To be sure, there is one regrettable aspect
litigation and because of the press of other
that *
to the CIA's recent disclosures. Apparently
business. Moreover, as is clear from the
attached CIA letters (Exhibits C, D, and E),
ings t
the Agency became aware of the existence of
documents possibly relevant to Goland in the
the number of additional documents turned
tion
late fall of 1977. See Exhibits C and E.
out to be very great. The law librarian did
not complete her first partial inventory of the
1. Ou
Despite the pendency of this case before this
Court and plaintiffs' outstanding FOIA re-
additional documents until May 19, 1978. Id.
men
quest, the documents were not compiled
Opp. to Mot. to Vacate at
of
197
itary
U.S.App.D.C., at 369-370 of 607 F.2d.
10,
speedily, and Justice Department counsel
cour
were not informed of their existence. How-
15. The CIA seeks to refute any suggestion of
ever, this was not a "strategy decision to
bad faith by pointing to its disclosure, albeit
stand mute," as claimed in plaintiffs' motion
2. City
belated, of the documents after our opinion
to vacate. As explained in the attached let-
issued. Opp. to Mot. to Vacate at - n.3 of
ship
ter from the CIA's Office of General Counsel
197 U.S.App.D.C., at 369 n.3 of 607 F.2d. I
to Justice Department counsel (Exhibit E),
confess I am unable to find grounds for ap-
1. Sp
insufficient priority was given to these addi-
plause in the agency's tardy recognition of
flow
tional documents because there was uncer-
long-neglected legal and moral duty.
sew
THE WHITE HOUSE
WASHINGTON
September 18, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTSQR
SUBJECT:
Disposition of James A. Baker, III
Papers (Request from Norman Hackerman
of Rice University)
Some time ago Kathy Camalier asked for our advice concerning
the disposition of Mr. Baker's White House papers. Mr.
Baker had received a letter from the President of Rice
University, asking that he agree to deposit the papers at
Rice. Mr. Baker's office informed Rice officials that the
request was premature, but asked us to look into the matter,
noting that it "is not a top priority inquiry."
The vast majority of Mr. Baker's papers are, of course,
covered by the Presidential Records Act, 44 U.S.C.
§§ 2201-2207, since they were "created or received by the
President, his immediate staff, or a unit or individual of
the Executive Office of the President whose function is to
advise and assist the President, in the course of conducting
activities which relate to or have an effect upon the
carrying out of the constitutional, statutory, or other
official or ceremonial duties of the President." 44 U.S.C.
§ 2201 (2). The only papers from his White House tenure that
Mr. Baker could consider donating to Rice are, accordingly,
"personal records," defined in the Act to include "diaries,
journals, or other personal notes" not used in transacting
Government business, private political materials having no
relation to the President's duties, and materials relating
solely to the President's own election. Id. § 2201(3).
With respect to such "personal records" of Administration
officials, however, Mr. Meese's office has been working with
the Archivist to secure them for possible inclusion in the
Reagan Presidential Library. Mr. Meese's office asked us
earlier this year to review a letter they prepared with the
Archivist, asking Administration officials to donate personal
materials to the National Archives for placement in the
Reagan Presidential Library. (We have been holding the
letter in abeyance because of our many disputes with the
Archivist and the unresolved status of the Reagan Library.)
Any decision by Mr. Baker to donate his personal papers to
Rice would be inconsistent with the proposal to house those
papers in the Reagan Library.
- 2 -
The attached memorandum for Mr. Baker advises him that (1)
he can only consider donating his personal papers (as
defined in the Presidential Records Act) to Rice, and (2) it
has been proposed that such personal papers of staff members
and Cabinet officials be donated to the National Archives
for inclusion in the Reagan Presidential Library.
Attachment
THE WHITE HOUSE
WASHINGTON
September 19, 1984
MEMORANDUM FOR JAMES A. BAKER, III
ASSISTANT TO THE PRESIDENT
CHIEF OF STAFF
Orig. signed by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Disposition of Your White House Papers
Your office has requested guidance on inquiries you have
received concerning the possible donation of your White
House papers to Rice University. The vast bulk of your
White House papers are covered by the Presidential Records
Act, 44 U.S.C. §§ 2201-2207. That Act defines "Presidential
records" broadly to include:
documentary materials, or any reasonably segregable
portion thereof, created or received by the President,
his immediate staff, or a unit or individual of the
Executive Office of the President whose function is to
advise and assist the President, in the course of
conducting activities which relate to or have an effect
upon the carrying out of the constitutional, statutory,
or other official or ceremonial duties of the
President. Id. § 2201 (2).
Pursuant to 44 U.S.C. § 2202, the Government retains "complete
ownership, possession, and control of Presidential records."
At the end of a President's last term, the Archivist assumes
custody and control of the Presidential records. Id.
§ 2203 (f) (1). Accordingly, you are not in a position to
consider donating those of your papers defined as Presi-
dential records -- the vast majority -- to Rice or any other
institution.
You do retain control over "personal records of a purely
private or nonpublic character," including "diaries, journals,
or other personal notes" not used to transact Government
business, "materials relating to private political associa-
tions, and "materials relating exclusively to the President's
own election." Id. § 2201 (3) With respect to such materials
of White House staff members and Cabinet officials, however,
you should be aware that Ed Meese's office has been working
with the Archivist on a proposal to secure their donation to
the National Archives for inclusion in the Reagan Presidential
Library. It is the Archivist's view that the Reagan Presidential
- 2 -
Library would be considerably enriched by the inclusion of
the personal records of key Administration officials.
Meese's office and the Archivist have prepared a draft
letter to Administration officials, asking them to consider
donating their personal papers for inclusion along with
their official papers in the Reagan Presidential Library.
That letter has not yet been sent because of certain outstanding
issues involving the Archivist and the Reagan Library.
Thus, you may wish to consider that option as well.
FFF: JGR:aea 9/19/84
CC: FFFielding/JGRoberts/Subj/Chror
222895
ID #
CU
21
WHITE HOUSE
FG006-01
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H . INTERNAL
JR This is an the intenting news
I - INCOMING
Date Correspondence
/
issue
Received (YY/MM/DD)
Name of Correspondent:
Katherine Camalier
Jump
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Disposition of James a. Baker III
Rice Univ)
Papers (request from norman Hackerman
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 DD 184,0418
1
/
Referral Note:
CUAT78
P
584,04129
Referral Note:
1 1
/
/
Referral Note:
1 I
1
Referral Note:
1 1
1
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
Non-Special Referral
6 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
see ID 151469
DD
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 WHITE HOUSE
WASHINGTON
April 17, 1984
222895 ca
MEMORANDUM TO:
FRED FIELDING
FROM:
KATHERINE CAMALIER
SUBJECT:
Disposition of James A. Baker, III Papers
Sometime ago, Rice University contacted Jim Baker to inquire
regarding the disposition of his White House and related
papers at the conclusion of this term. We contacted Rice
University to advise them that any such request was premature
and then set their letter aside. I have attached a copy of
their letter for your further information.
Would you, or a member of your staff, please let us know what,
if any, papers, documents, etc. Mr. Baker can give to Rice
University? We are aware of the strict requirements outlined
in the "Presidential Records Act, but would appreciate any
clarification of this. For example, we have kept extensive
"scrapbooks" of newspaper articles, etc. that mention Jim
Baker. We are assuming that this is "personal property" and
that Mr. Baker can, if he chooses, give these to Rice
University.
This is not a top priority inquiry at this time, but it is
something that we will need to be aware of at some point down
the road. Thank you, in advance, for providing any pertinent
information or explanation.
RICE UNIVERSITY
Discuss LATER
HOUSTON, TEXAS77001
NORMAN HACKERMAN
PRESIDENT
May 23, 1983
Mr. James A. Baker, III
Chief of Staff and Assistant
to the President
SERIOUSLY CONSIDERIN)
The White House
GRACIOUS
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Youn offer
Dear Jim:
would Like
I wonder if you have considered what disposition you will
ultimately make of your White House and related papers. It
occurs to me that it might be mutually advantageous for them to
Discuss
To
be housed and catalogued here at Rice. We are committed to
strengthening our special holdings in the social sciences and
humanities and believe that the James A. Baker, III, Papers will
AT
A
be an important resource for scholars of the future to draw upon;
and, of course, they would be conveniently located for you to
LATER
monitor and use.
If you are receptive to this suggestion perhaps I could
DATE
visit with you on one of my trips to Washington in the near fu-
ture; or, if you prefer, we would be happy to have you come on
campus the next time you are in Houston to discuss this in more
detail.
I look forward to hearing from you.
Sincerely,
IT'S Sujestad All Alons
NH:jb What
FiNAllY YOURSCRAPS FOR A Home
(Hand-written notes
Do iT!!
by Margaret Tutwiler)
8

Page data

Page: 1
Source index: 0
Type: document
Media ID: 5fcc6630c0e21d70
Size: unknown

Document data

ID: 135839686
Core: doc
Type: document

DTO data

{
    "id": "135839686",
    "sourceUrl": "https://catalog.archives.gov/id/135839686",
    "contentType": "document",
    "title": "JGR/White House Files",
    "citationUrl": "https://catalog.archives.gov/id/135839686",
    "identifierLocal": "485",
    "collections": [
        "Records of the Office of Counsel to the President (Reagan Administration)",
        "John Roberts' Subject Files"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

Context sent to Scholar

Document identity

{
    "localId": "135839686",
    "label": "JGR/White House Files",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/135839686"
}

Document source metadata

{
    "id": "135839686",
    "sourceUrl": "https://catalog.archives.gov/id/135839686",
    "contentType": "document",
    "title": "JGR/White House Files",
    "citationUrl": "https://catalog.archives.gov/id/135839686",
    "identifierLocal": "485",
    "collections": [
        "Records of the Office of Counsel to the President (Reagan Administration)",
        "John Roberts' Subject Files"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

Document source extras

{
    "url": "https://catalog.archives.gov/id/135839686",
    "naId": 135839686,
    "coverageEndDate": {
        "logicalDate": "1986-12-31",
        "year": 1986
    },
    "coverageStartDate": {
        "logicalDate": "1982-01-01",
        "year": 1982
    },
    "levelOfDescription": "fileUnit",
    "recordType": "description",
    "ocrSource": "nara-archive"
}

Page context

{
    "seq": 1,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-057-005-2017.pdf",
    "mediaId": "5fcc6630c0e21d70",
    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/White House Files\nBox: 57\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nfile: white House files\nLLS: CS:mlc\nCC: files\nSudol\nSimms\nSunstein\nRetrieval\n2 2 DEC 1300\nMEMORANDUM FOR THE ATTORNEY GENERAL\nRe: Presidential control over documents sent\nto or from White House but kept in agency\nor department files\nYou have requested the views of this Office with\nrespect to the President's power to control access to documents\nsent to or from the White House, copies of which are currently\nkept in the files of a Federal agency or department. In\nparticular, your question involves documents whose originals\nmay be found in the White House but copies of which have been\nfiled with the agency to or from which the documents were\nsent. For the reasons stated below, we believe that a\nPresident has no statutory or constitutional power to control\naccess to or dissemination of documents that are required by\nlaw to be retained in the files of federal agencies.\nA comparatively recent statement by the Attorney\nGeneral on the subject of presidential control over papers\ngenerated in the White House contains an extensive discussion\nof the governing law prior to the passage of the Presidential\nRecords Act of 1978, Pub. L. No. 95-951, 92 Stat. 2523, 44 U.S.C.\n55 2201-2207. (That Act is not applicable in this context\nbecause it is not effective until January 20, 1981. See\nPub. L. No. 95-591, S 3.) In 43 Op. A.G. 1 (1974), Attorney\nGeneral Saxbe concluded that \"papers and other historical\nmaterials retained by the White House\" were, by virtue of\nan established historical practice acknowledged by all three\nBranches of government, the personal property of the President.\nAccording to the Attorney General, every President has reached\nthis conclusion with respect to \"all the papers and historical\nmaterials which accumulated in the White House during his\nadministration.\" Id. at 2. Such documents would \"not become\nthe property or a record of the government unless [they] go[ ]\non to the official files of the department to which [they] may\nbe addressed.\" Id., quoting Taft, The Presidency 30-31 (1916).\nThis conclusion was buttressed by similar views\nexpressed on various occasions by Congress, see, e.g.,\nPub. L. No. 90-260, 82 Stat. 1288 (Administrator of General\nServices may accept for deposit all papers of President or\nformer President); 101 Cong. Rec. 9935 (1955) (remarks of\nRep. Moss) (\"Presidential papers belong to the President\");\nH.R. Rep. No. 966, 93d Cong., 2d Sess. 28-29 (1974). Indeed,\nthe same position was articulated in the House Report\naccompanying the Presidential Records Act of 1978. See H.R.\nRep. No. 1487, 95th Cong., 2d Sess. 2, 5-7 (1978). Although\nthe Supreme Court has not addressed the matter, see Nixon V.\nAdministrator of General Services, 433 U.S. 425, 445 n.8\n(1977), Mr. Justice Story, acting as Circuit Judge, concluded\nover one hundred years ago that President Washington's official\ncorrespondence was his private property. See Folsom V. Marsh,\n9 F. Cas. 324 (No. 4901), 2 Story, 100, 198-109 (C.C.D. Mass.\n1841).\nNo comparable historical practice supports the proposition\nthat the President is authorized to control access to documents\nwhich are not in the custody or control of the White House.\nAttorney General Saxbe's conclusion was expressly restricted\nto materials \"retained by the White House.\" President Taft's\nviews, which the Attorney General quoted with approval, plainly\nsuggested that the President's correspondence becomes \"the\nproperty or a record of the government\" when \"it goes on to\nthe official files of the department to which it may be\naddressed.\" To our knowledge, no judge or member of Congress\nhas expressed the view that the President has rights of owner-\nship in documents not in the custody or control of the White\nHouse. We do not believe this conclusion is altered by the\nfact that either the original or a copy of the document remains\nin the custody of the President. To be sure, that original\nor copy is subject to the President's control. But no statute\nor historical practice suggests that documents that are kept\nin another agency's official files are nonetheless within\npresidential control.\nThis conclusion is compelled by the provisions of the\nRecords Disposal Act, 44 U.S.C. 3301 et seq. That Act\nplaces careful controls on the removal or disposal of agency\nrecords. The term \"records\" is defined as including\n[A] 11 books, papers\nor\nother documentary materials\nmade or received by an agency of the\nUnited States Government under Federal\nlaw or in connection with the transac-\n- 2 -\ntion of public business and preserved\nor appropriate for preservation by that\nagency or by its legitimate successor as\nevidence of the organization, functions,\npolicies, decisions, procedures, opera-\ntions, or other activities of the\nGovernment or because of the informational\nvalue or data in them.\n44 U.S.C. § 3301. Documents sent to or from the President and\nretained in agency files are undoubtedly \"records\" within the\nmeaning of this provision. Such documents may not be disposed\nof except in accordance with the provisions of the Records\nDisposal Act. In the absence of an express or implied statutory\nexclusion or an applicable constitutional provision, we do\nnot believe that it would be proper to infer an exemption\nfor documents sent to or from the White House. We therefore\nconclude that access to such documents may not be controlled\nor restricted by the President. /\nSincerely,\nLarry L. Simms\nActing Asssistant Attorney General\nOffice of Legal Counsel\n* / For the same reasons, we do not believe that a member of\nthe Cabinet is permitted to assure the President that he will\nrestrict access to documents sent to or from the White House\nbut retained in agency files. Under the federal records\nstatutes, a Cabinet member has no general authority to remove\ndocuments filed in the agency or department which he leads.\nIf the relevant agency's regulations so provide, however, he\nmay be permitted to remove documents found by the agency to\nbe not \"appropriate for preservation,\" such as working drafts\nor papers whose substance is adequately reflected in other\ndocuments filed with the agency. See Brief for the Federal\nParties, Kissinger V. Reporters Committee for Freedom of the\nPress, 445 U.S. 136 (1980). With respect to documents not\n\"appropriate for preservation,' the President may enter into\na contractual relationship with Cabinet officials without\noffense to the federal records statutes. The enforceability\nof any such agreement would depend on general principles of\ncontract law.\n- 3 -\nRYAN V. DEPARTMENT OF JUSTICE\n781\nCite as 617 F.2d 781 (1980)\nNEPA, which would otherwise limit FERC\ngressional intent by allowing delay to result\naction, have already been removed from our\nfrom a complaint that goes only to the\nconsideration. In order to accept jurisdic-\nreasonableness and record support of FERC\ntion and step in to overturn this action of\ndecisions. In this case complainants have\nthe Commission, we would have to ignore\nnot pointed to any Commission action or\nthe ANGTA in precisely the type of situa-\nomission of the type Congress intended us\ntion where it most compellingly applies.\nto review. The complaint is therefore\nThis would produce exactly the result that\nDismissed.\nCongress tried to prevent.\nFor instance, to require a separate EIS\nfor the pipeline pressure issue would delay\nKEY NUMBER SYSTEM\neventual construction by months and per-\nhaps years. The interrelationship between\nissues, which is the foundation of complain-\nants' argument, could make the delay even\nlonger. Decisions on various design fea-\ntures of the pipeline must be made sequen-\nTom W. RYAN, Jr., Missouri Public In-\ntially; e. g., final design of the pipeline\nterest Research Group, Appellants,\nmust await approval of operating pressure,\nV.\nand financing arrangements are influenced\nDEPARTMENT OF JUSTICE.\nby design specifics and their cost. Thus a\ndelay in deciding on pipeline pressure can\nCharles R. HALPERN, Judicial Selection\nhave ripple effects that upset planning cer-\nProject, Dorothy J. Samuels, Committee\ntainty for financing purposes.2\nfor Public Justice, Appellants,\nSuch concerns underlie the Commission's\nV.\ndecision to proceed with separate issues and\nDEPARTMENT OF JUSTICE.\nCongress's decision to shield the decision-\nmaking process from judicial review when\nNos. 79-1777, 79-1778.\nconstitutionally permissible. Even with the\nUnited States Court of Appeals,\nANGTA provision to expedite pipeline con-\nDistrict of Columbia Circuit.\nstruction, it has already taken the Commis-\nsion two years since the President's decision\nArgued 22 Oct. 1979.\njust to approve a pressure level for the\nDecided 7 Jan. 1980.\npipeline. Final certificates and commence-\nment of construction are still further in the\nAs Amended on Denial of Rehearing\nfuture. In this light, if there is any short-\nFeb. 25, 1980.\ncoming in the Commission proceedings, it is\ncertainly not in a lack of deliberation or in\nSuit was instituted to obtain disclosure\ndenial of time and opportunity for interest-\nof documents under the Freedom of Infor-\ned parties to express their views.\nmation Act. The United States District\nOf course the questions before us in this\nCourt for the District of Columbia, Parker,\ncase are quite narrow. But these broader\nJ., 474 F.Supp. 735, entered order granting\nconsiderations of congressional intent to ex-\nsummary judgment to defendant, and\npedite do drive home the importance of\nplaintiffs appealed. The Court of Appeals,\ntaking ANGTA's judicial review provisions\nWilkey, Circuit Judge, held that: (1) docu-\nseriously. We may not strain for a statuto-\nments in form of responses made by various\nry interpretation that will circumvent, con-\nsenators to a questionnaire sent by the At-\n29. An increase in the approved pressure level\nstudies and burst testing necessary to ensure\ncan cause even greater delay. The Canadian\nthe reliability of such new technology could\nNational Energy Board rejected pressure levels\ndelay the project by up to two years. See Joint\nabove 1260 psig partly because the engineering\nAppendix at 87.\n782\n617 FEDERAL REPORTER, 2d SERIES\ntorney General inquiring about procedures\nformer was not an \"agency\" because he\n7. Reco\nemployed by state nominating commissions\nfunctioned in a purely advisory capacity to\nWh\nfor selecting and recommending persons to\nthe President. 5 U.S.C.A. § 552.\noutside\nthe President for appointment to new fed-\nSee publication Words and Phrases\nprocess,\neral district court judgeships were \"agency\ndefinitions. for other judicial constructions and\nrecords\" for purposes of the Freedom of\nentirely ment to\nInformation Act where, aside from fact\n3. Federal Courts\n617\nfor purp\nthat documents were within exclusive con-\nThough Court of Appeals did not nor-\nstatutor\ntrol of the Attorney General, there was no\nmally give consideration to issues that were\n(5).\nbasis for distinguishing between the Attor-\nneither raised nor decided below, where\nney General and the Department of Justice\nsue with respect to applicability of an\n8. Reco\nin such a way that the former was not an\nStat\nemption under the Freedom of Information\n\"agency\" because he functioned in a purely\nAct was raised and briefed in summary\ntra-ager\nadvisory capacity to the President, and (2)\njudgment motions before the district court\nwould n\ndocuments were exempt from disclosure un-\nthere was no doubt as to proper resolution\nother tl\nder Act as \"inter-agency or intra-agency\nof case, and delay by extensive further pro-\nagency\nmemorandums or letters\" except for factual\nwhich will\nceedings in district court could render plain\nsegments which did not reveal deliberative\ntiffs' efforts futile, it was fully appropriate\nin civil 1\nprocess and were not intertwined with poli-\nfor Court of Appeals to proceed to exemp-\nC.A. § 5\ncy-making process.\ntion issue. 5 U.S.C.A. § 552(b)(5).\n9. Reco\nVacated and remanded.\n4. Records 57\nSta\nil litiga\nExemption accorded in Freedom of In-\n1. Records\n53\nformation Act to \"inter-agency or intra->\npreted b\nStandard for determining whether a\nagency memorandums or letters\" which\npurely f\nfrom th\ndocument is an agency record, namely,\nwould not be available by law to a party\nment, ai\nwhether under all facts of case document\nother than an agency in litigation with\nconfider\nhas passed from control of Congress and\nagency was created to protect deliberative\nmust be\nbecome property subject to free disposition\nprocess of government by ensuring that\nof agency with which document resides, re-\npersons in an advisory role would be able to\n10. Rec\nquires court to look at circumstances under\nexpress their opinions freely to agency dect-\nFac\nwhich document was generated, whether it\nsion makers without fear of publicity.\ndisclosur\nwas generated by a nonagency, and how,\nU.S.C.A. § 552(b)(5).\nmanner\nand why, and to look at nonagency's intent\nfacts we\n5. Records\n55\nin transferring document to agency. 5 U.S.\nfacts ar\nA narrow interpretation must be given\nC.A. § 552.\npolicy-m\nto an exemption in Freedom of Information\n§ 552(b)\n2. Records\n54\nAct. 5 U.S.C.A. § 552(b)(5).\nDocuments in form of responses made\n11. Rec\n6. Records\n57\nby various senators to a questionnaire sent\nPro\nby the Attorney General inquiring about\nIn enacting statute affording an ex-\nagency\nemption to \"inter-agency or intra-agencye\nprocedures employed by state nominating\nwould n\nmemorandums or letters\" which would not\ncommissions for selecting and recommend-\nother tl\ning persons to the President for appoint-\nbe available by law to a party other than an\nagency\nagency in litigation with agency, Congrest\nment to new federal district court judge-\nagencies\napparently did not intend \"inter-agency\nships were \"agency records\" for purposes of\nand fina\nand \"intra-agency\" to be rigidly exclusive\nthe Freedom of Information Act where,\nor which\nterms, but rather, to include any agency\naside from fact that documents were within\nready ta\nexclusive control of the Attorney General,\ndocument that is part of deliberative proo-\ntions be\nthere was no basis for distinguishing be-\ness. 5 U.S.C.A. § 552(b)(5).\ncommun\nSee publication Words and Phrases\ntween the Attorney General and the De-\nfor other judicial constructions and\nment ar\npartment of Justice in such a way that the\ndefinitions.\nleged. :\nRYAN V. DEPARTMENT OF JUSTICE\n783\nCite as 617 F.2d 781 (1980)\ncy\" because he\n7. Records\n57\n12. Records\n54\nsory capacity to\nWhen an agency record is submitted by\n$ 552.\nThat an individual senator may have\noutside consultants as part of deliberative\ntaken final action by deciding which indi-\nand Phrases\nprocess, and it was solicited by agency, it is\nructions and\nviduals he would recommend to the Presi-\nentirely reasonable to deem resulting docu-\ndent for appointment to the new federal\nment to be an \"intra-agency\" memorandum\ndistrict court judgeships was not material\nfor purposes of determining applicability of\nto whether the documents in form of re-\nals did not nor-\nstatutory exemption. 5 U.S.C.A. § 552(b)\nsponses to a questionnaire from the Attor-\nissues that were\n(5).\nney General constituted the final opinion or\nxlow, where is-\n& Records\n57\naction of an agency. 5 U.S.C.A. § 552(b)(5).\nbility of an ex-\nof Information\nStatute exempting \"inter-agency or in-\n13. Records\n54\nin summary\ntra-agency memorandums or letters\" which\nFinality could not justify disclosure of\ndistrict court,\nwould not be available by law to a party\ndocuments in form of responses made by\nroper resolution\nother than an agency in litigation with\nvarious senators to a questionnaire from the\nfurther pro-\nagency protects only those memoranda\nAttorney General respecting procedures\nrender plain-\nwhich would not normally be discoverable\nadopted by state nominating commissions\nappropriate\nin civil litigation against an agency. 5 U.S.\nfor selecting and recommending persons to\nto exemp-\nC.A. § 552(b)(5).\nthe President for appointment to federal\n(b)(5).\n1. Records\n54\ndistrict court judgeships. 5 U.S.C.A.\nStandard of what is discoverable in civ-\n§ 552(b)(5).\nFreedom of In-\nil litigation against any agency, as inter-\n14. Records\n57\nintra-\npreted by the Supreme Court, indicates that\nor\nResponses by various senators to a\nletters\" which\npurely factual material which is severable\nquestionnaire from the Attorney General\nto a party\nfrom the policy advice contained in a docu-\nrespecting procedures adopted by state\nlitigation with\nment, and which would not compromise the\nnominating commissions for selecting and\ndeliberative\nE confidential remainder of the document,\nrecommending persons to the President for\nensuring that\nmust be disclosed. 5 U.S.C.A. § 552(b)(5).\nappointment to new federal district court\nould be able to\n10, Records\n53\njudgeships were exempt from disclosure un-\nagency deci-\nFactual segments are protected from\nder Freedom of Information Act as \"inter-\npublicity.\n5\ndisclosure as not being purely factual if\nagency or intra-agency memorandums or\nmanner of selecting or presenting those\nletters\" except for factual segments which\nfacts would reveal deliberate process or if\ndid not reveal deliberative process and were\nfacts are \"inextricably intertwined\" with\nnot intertwined with policy-making process.\nbe given\nInformation\npolicy-making\nprocess.\n5\nU.S.C.A.\n5 U.S.C.A. § 552(b)(6).\n$\n552(b)(5).\n15. Federal Courts\n612\n11. Records\n57\nGovernment was precluded from rais-\ner-\nProvision for \"inter-agency or intra-\ning issue whether questioned documents\nan\nintra-agency\nagency memorandums or letters\" which\nwere exempt from disclosure as \"personnel\nwould\nnot\nwould not be available by law to a party\nand medical files and similar files\" where\nother\nthan\nan\nother than an agency in litigation with\ngovernment failed to raise that issue in\nCongress\nagency does not apply to final actions of\noriginal proceeding before district court. 5\ninter-agency\"\nagencies, in sense of statements of policy\nU.S.C.A. § 552(b)(6).\nexclusive\nand final opinions which have force of law\n16. Records\n66\nany\nagency\nx which explain actions an agency has al-\nerative\nready taken, but applies only to communica-\nOnce the district court orders the\nproc-\ntions before adoption of an agency policy;\ngovernment to disclose all purely factual\nPhrases\ncommunications that promulgate or imple-\nmaterial in the questioned documents and\nand\nment an established policy are not privi-\nto identify those advisory segments protect-\neged. 5 U.S.C.A. § 552(b)(5).\ned by the statutory exemption, it may then\nbe necessary for the district court to inspect\n784\n617 FEDERAL REPORTER, 2d SERIES\ndocuments in camera to decide if individual\nommendations from others, evaluate selec-\nsegments properly fall within the exemp-\ntion processes, and recommend persons\nan\ntion. 5 U.S.C.A. § 552(b)(6).\nthe President for appointment. Included\nnot\nthis task is the obligation to consid\nFO\nwhether an affirmative effort has been\ncon\nAppeal from the United States District\nCourt for the District of Columbia. (D.C.\nmade to identify qualified candidates,\nby\nCivil Nos. 79-1042 & 79-1043)\ncluding women and members of minority\nme\ngroups. In November 1978 the Attorney\necu\nGirardeau A. Spann, Washington, D. C.,\nGeneral sent to all Senators a questionnaire\nad\nwith whom Alan B. Morrison and David C.\ninquiring about their procedures for select.\ncas\nVladeck, Washington, D. C., were on brief,\ning and recommending potential nomineea.\ndet\nfor appellants.\nBy June 1979 the Attorney General\nJoseph B. Scott, Atty., Dept. of Justice,\nreceived more than fifty responses.\n-\nWashington, D. C., with whom Carl S.\nIn early 1979 plaintiffs sought FOIA\nRauh, U. S. Atty. and Leonard Schaitman,\nclosure of questionnaire responses from the\n-\nAtty., Dept. of Justice, Washington, D. C.,\nDepartment of Justice, as part of an effort\nph\nwere on brief, for appellee.\nto monitor federal judicial appointments\nsuf\nand their inclusion of women, racial minori\nwh\nBefore McGOWAN and WILKEY, Cir-\nties, and \"public interest\" lawyers. The\nsin\ncuit Judges, and GESELL* United States\nDepartment of Justice denied disclosure\nag\nDistrict Judge for the District of Columbia.\nclaiming that the responses were not agen-\nFC\nOpinion for the Court filed by WILKEY,\ncy records within the scope of the FOIA\nto\nCircuit Judge.\nand were exempt under FOIA Exemption s\na\nas pre-decisional advisory material.\nco\nWILKEY, Circuit Judge:\nPlaintiffs filed suit in United States Dis\nth\nThis case is an appeal from a district\ntrict Court to compel disclosure. On 11\nth\ncourt order granting summary judgment to\nJuly 1979 the district court, ruling on cross-\nwl\nthe Government in a Freedom of Informa-\nmotions for summary judgment, granted.\nag\ntion Act (FOIA) suit, on grounds that the\njudgment for the Government. The district\nmain\nrequested documents were not \"agency rec-\ncourt held the documents not to be agency\nsu\nords\" for FOIA purposes. We find on the\nrecords, and thus found it unnecessary to\nag\nbasis of the undisputed facts that the docu-\nrule on the Exemption 5 issue, which had\ngr\nments are agency records; we therefore\nbeen briefed and argued. The court also\nreverse with instructions to enter summary\nconducted in camera inspection of five ran-\njudgment for plaintiffs on this issue. We\ndomly selected questionnaire responses.\nco\nalso consider the applicability of FOIA Ex-\nPlaintiffs appealed to this court, and we\nen\nemption 5 to these documents, and remand\nhave taken expedited action to resolve the\nof\nfor the district court to determine the ex-\ncase before the President's completion of\nio\ntent to which that exemption bars disclo-\nthe judicial selection process renders plain-\ncj\nsure.\ntiffs' action futile.\n2.\nI. FACTS\n3.\nIn order to guide the selection of new\nII. THE AGENCY RECORDS ISSUE\nfederal district court judges, President Car-\nIn several prior FOIA cases courts have\nter issued \"merit selection\" guidelines in\nbeen called upon to determine whether re-\n4.\nExecutive Order 12097.1 This Order\nquested documents are \"agency records.\"\ncharges the Attorney General with the duty\nThis issue commonly arises when the re-\nto evaluate potential nominees, receive rec-\nquested documents are in the possession of\n5.\n* Sitting by designation pursuant to 28 U.S.C.\n1. 3 C.F.R. $ 254 (1978).\n§ 292(a) (1976).\nRYAN V. DEPARTMENT OF JUSTICE\n785\nCite as 617 F.2d 781 (1980)\naluate\nselec-\nan agency but were created by an entity\nFOIA request for a congressional document\nI persons to\nnot defined as an \"agency\" under the\nthat was in the hands of an agency. We\nIncluded in\nFOIA: Congress, federal courts, outside\nadopted a standard of control rather than\nto\nconsider\nconsultants not in corporations controlled\npossession: \"whether under all the facts of\nt has been\nby the government,2 or the President's im-\nthe case the document has passed from the\nadidates,\nin-\nmediate personal staff and units in the Ex-\nof\ncontrol of Congress and become property\nminority\necutive Office whose sole function is to\nhe\nsubject to the free disposition of the agency\nAttorney\nadvise and assist the President.³ For such\nwith which the document resides.\" Under\nuestionnaire\nfor\ncases the FOIA does not specify a test for\nthe Goland standard, the court looks at the\nselect-\nnominees.\ndetermining what is an agency record.4\ncircumstances under which the document\nGeneral\nhad\nwas generated-whether it was generated\nA. Standard as to What Is an Agency\nby a non-agency, and how, and why-and at\ndis-\nRecord\nthe non-agency's intent in transferring the\nFOIA\ndocument to the agency. In Goland, Con-\nfrom\nthe\nThe straightforward question of who has\ngress's actions generating the document\nof\nan\neffort\nphysical possession of documents has not\nduring an executive session of a committee,\nopointments\nsufficed, in cases before this court, to define\nmarking the document \"Secret,\" and trans-\nminori-\nwhether documents are agency records.5 A\nferring it to the CIA solely for internal\nThe\ntimple possession standard would permit\ndisclosure,\nreference purposes, showed that Congress\nagencies to insulate their activities from\nintended to refrain effective control while\nnot\nagen-\nFOIA disclosure by farming out operations\nthe\nFOIA\nthe document was in agency hands.'\nto outside contractors. It would also create\nxemption\n5\na severe problem whenever confidential\nGoland follows the structure and intent\ncongressional documents or materials from\nof the FOIA by determining what entity\nStates\nDis-\nthe President's immediate staff come into\ncontrols the document and deciding wheth-\nOn\n11\nthe possession of an agency, as may occur\ner that entity is within the category of\non\ncross-\nwhen Congress oversees and supervises an\n\"agency\" defined by the Act. An earlier\ngranted\nagency. A standard that automatically\ndecision of this court pursued a similar ap-\nThe\ndistrict\nmade such records subject to FOIA disclo-\nproach, inquiring whether the generation of\nbe\nagency\nsure as soon as they are transferred to\na document by consultants of the Office of\ncessary\nto\nagency hands would seriously impair Con-\nScience and Technology brought it within\nwhich\nhad\ngress's oversight role.\ncontrol of that Office so as to make it a\ncourt\nalso\n\"record,\" and whether that Office was an\nfive\nran-\n[1] Recognizing these difficulties, this\n\"agency\" or rather a part of the President's\nresponses.\ncourt has adopted a standard more consist-\nstaff.¹⁰ In a more recent case we have\nand\nwe\nent with the intent and general framework\nagain examined whether an agency con-\nesolve\nthe\nof the FOIA disclosure system. Our opin-\ntrolled the documents of an outside entity,\npletion\nof\nlon in Goland V. Central Intelligence Agen-\nin the sense of being involved in the \"core\nplain-\ney\" examined this issue in the context of a\nplanning or execution\" of a program, such\n2 See 5 U.S.C. § 552(e) (1976).\n6. See Goland V. Central Intelligence Agency,\nz See S.Rep.No.1200, 93d Cong., 2d Sess. 15\n607 F.2d at 346.\nISSUE\n6267. (1974), U.S.Code Cong. & Admin.News 1974, p.\n7. 607 F.2d 339 (D.C. Cir. 1978).\nhave\nether\nre-\nh 44 U.S.C. $ 3301 is the only statutory defini-\n8. Id. at 346-47. See also Cook V. Willingham,\nrecords.\"\ntion of \"record,\" and it is not applicable to the\n400 F.2d 885 (10th Cir. 1968).\nthe\nre-\nFOIA. See Goland V. Central Intelligence\nof\nAgency, 607 F.2d 339, 345 n.30 (D.C. Cir. 1978).\n9. See Goland V. Central Intelligence Agency,\n607 F.2d at 347.\n& The Ninth Circuit has also rejected the pos-\nsession standard. See Warth V. Department of\n10. See Soucie V. David, 145 U.S.App.D.C. 144,\nJustice, 1979). 595 F.2d 521, 522-23 & n.7 (9th Cir.\n150-53, 448 F.2d 1067, 1073-1076 (D.C. Cir.\n1971).\n786\n617 FEDERAL REPORTER, 2d SERIES\nas to make the documents agency records\nsensitive, and nothing in the Attorney Gen.\nwithin the FOIA. 11\neral's questionnaire or other circumstances\nindicated that Senators would have the pre-\nB. Control of the Records in this Case\nrogative to maintain secrecy. On this reo\nIn the present case, although the request-\nord we cannot find control by the Senatora\ned documents were in the possession of the\nNor have the nominating commissions exen.\nDepartment of Justice, the district court\ncised any degree of control over the doca!\nconcluded that the history and purpose of\nments.\ntheir generation showed them not to be\nAlthough the documents are for the ulti-\nagency records under the FOIA. The court\nmate benefit of the President in a nominat-\nfound that the documents did not belong to\nand were not within the control of either\ning role that is exclusively his, we find that\nthe Attorney General was acting as an inde-\nthe Attorney General who possessed them,\nthe Senators who participated in their gen-\npendently controlling entity, and not a mere\nconduit. The questionnaires solicited re-\neration, the state nominating commissions\nabout which they reported, or the President\nsponses from Senators at the request of the\nAttorney General, not the President. In his\nfor whose ultimate benefit they were creat-\ncover letter enclosed with the question-\ned. Rather, the court found, the documents\nnaires, the Attorney General stated the in\nwere the \"collective product and property\"\nof all of these entities, none of which were\ndependent role he was to play in this proc-\ness: he was to consider certain factors be-\nagencies for FOIA purposes. The court\nfore making his own recommendations to\nconcluded that the Attorney General was\nthe President as to judicial nominees. This\nnot an \"agency\" in this case because he was\nis an independent exercise of judgment that\nacting as \"counsel and advisor to the Presi-\ndent,\" in furtherance of the President's\nthe Attorney General has traditionally take3\nen in the judicial nomination process. The\npower to nominate federal judges.¹²\nlogical deduction from the facts is that the\n[2] We find, on the contrary, that the\nAttorney General was to control the ques-\nrequested documents are in the control of\ntionnaire responses for the purpose of\nthe Attorney General and the Department\ncarrying out his independent duties. We\nof Justice which he heads. The Depart-\nhave no evidence before us that the Presi-\nment possesses the documents; and while\ndent in any way diminished the Attorney\nthis factor is not conclusive on the crucial\nGeneral's control over these documents;\nissue of control, it is certainly relevant.\nthere is no indication that they will ever be\nUnless there is evidence of control by some\ntransmitted to or seen by the President or\nother entity, we must conclude that the\nhis staff. By all indicia of ownership, the\nAttorney General and his Department con-\ndocuments are within the exclusive control\ntrol these documents. We find no such\nof the Attorney General.\nevidence. Senators generated these materi-\nals at the specific request of the Attorney\nGeneral, and they gave no indication that\nC. The Attorney General as Advisor and\nthey wished to limit his use of them. There\nas Administrator\nare no express or reasonably implied senato-\nWe must next consider whether there is\nrial instructions concerning the Attorney\nany basis in the FOIA for distinguishing\nGeneral's disposition of these documents.\nbetween the Attorney General and the De-\nThe Senators gave no indication that their\npartment of Justice, in such a way that the\nresponses were to be treated as secret or\nformer is not an \"agency\" where he fune-\n11. See Forsham V. Califano, 190 U.S.App.D.C.\n238, 245-48 (D.C. Cir. 1974), cert. denied, 421\n231, 239, 587 F.2d 1128, 1136 n.19 (D.C. Cir.\nU.S. 963, 95 S.Ct. 1951. 44 L.Ed.2d 450 (1975).\n1978), cert. granted, 441 U.S. 942, 99 S.Ct.\n2159, 60 L.Ed.2d 1044 (1979). See also Wash-\n12. See Ryan V. Department of Justice, 474\nington Research Project, Inc. V. Department of\nF.Supp. 735, 738-39 (D.D.C.1979).\nHEW, 164 U.S.App.D.C. 169, 176-78, 504 F.2d\nRYAN V. DEPARTMENT OF JUSTICE\n787\nCite as 617 F.2d 781 (1980)\nGen-\ntions in a purely advisory capacity to the\ndirectly on the Attorney General. 16 What-\nnstances\nPresident. Our analysis must start from\never the formal channels of responsibility,\nthe\npre-\nthe FOIA's definition of agency, which in-\nthe task of receiving, processing, and clear-\nthis\nrec-\ncludes \"any executive department.\" 13\ning names of judicial nominees has long\nenators.\nThere is no basis in this definition or its\nbeen a routine function of the Department\nexer-\nlegislative history to view the Attorney\nof Justice 17 Whether the official responsi-\ndocu-\nGeneral as distinct from his department for\nbility falls directly on the Attorney General,\nFOIA purposes. On the contrary, it is only\nor rather on one of his subordinates, makes\nhe\nulti-\nreasonable to consider him as much a part\nno difference to the fact that this function\nominat-\nof the Department of Justice as any other\nis regular business of the agency.\nthat\nofficial or employee in that Department.\nJudicial nominations are by no means\ninde-\nSince the creation of the Department of\nunique as an instance where normal agency\nmere\nJustice in 1870 the Attorney General has\nfunctions involve some element of giving\nre-\nalways had two roles: advisor to the Presi-\nadvice to the President. The entire Office\nof\nthe\ndent and administrator of the Department\nof Legal Counsel, under an Assistant Attor-\nIn\nhis\nof Justice. The same dual role would be\nney General, exists to assist the Attorney\ntrue, to a greater or lesser extent, of all\nGeneral in advising the President and Cabi-\nhe\nin-\nother Cabinet officers. Whether these doc-\nnet officers on major legal questions. Thus\nproc-\numents are agency records raises the ques-\na substantial number of people, integral\nbe-\n& tion: can any meaningful distinction be\nparts of the Department of Justice, are\nto\nmade between documents generated and\nthere to assist the Attorney General in per-\nThis\nkept in the Department on the basis of the\nforming his duty as advisor to the President\nthat\ntwo different roles? And, if so, would the\non a variety of matters. If we broke out all\ntak-\nsame distinction not apply in all Executive\ndocuments connected with these functions\nThe\nDepartments?\nas not being \"agency records\" under the\nthe\nThe Government argues that the ques-\nFOIA, we would have a substantial percent-\ntionnaire responses are not agency records\nage of Department of Justice records that\nof\nbecause they do not fall out of the sphere of\nwere somehow transformed into the Attor-\nWe\nthe appointment process into Department\nney General's personal records as advisor to\nof Justice business.¹⁴ The problem with\nthe President. This does not appear as\nthis argument is that the appointment of\neither a realistic or intended distinction un-\nfederal judges has always been a regular\nder the Freedom of Information Act.\nbe\nbusiness of the Attorney General and his\nThis conclusion is underscored if we ex-\nor\nDepartment. This responsibility was shift-\namine the likely results if the Government's\nthe\ned in 1978 to the office of the Associate\ntheory, adopted by the trial court, were\nAttorney General.¹ Shortly before we\napplied to other Executive Departments.\nheard this case on appeal, it was shifted\nFor example, in the Department of State a\nonce again, so that responsibility now falls\nhuge portion of the Secretary's functions\n13. 5 U.S.C. § 552(e) (1976).\ntions of an agency. See 145 U.S.App.D.C. at\n153. 448 F.2d at 1076. Cf. Forsham V. Califano,\n14. Brief for Appellee at 12-19.\n190 U.S.App.D.C. 231, 239, 587 F.2d 1128, 1136\nis\n15. See Dept. of Justice Order No. 790-78, 43\n(D.C. Cir. 1978) (FOIA applies only to record\nFed.Reg. 26,001, 26,002 (1978).\ncreated or obtained by agency \"in the course of\ndoing its work\"), cert. granted, 441 U.S. 942, 99\n16. See Dept. of Justice Order No. 858-79, 44\nS.Ct. 2159, 60 L.Ed.2d 1044 (1979). While\nFed.Reg. 58,908 (1979).\nthere may be exceptional circumstances that\nrender documents in an agency's possession\n17. As a matter of law we are not called upon to\nnot \"records,\" this case presents no such situa-\ndecide whether non-routine documents are out-\ntion. Cf. SDC Dev. Corp. V. Mathews, 542 F.2d\nside the scope of the FOIA. But we note that\n1116 (9th Cir. 1976) (agency reference library\nour opinion in Soucie V. David did not purport\nof medical writings stored in computer bank,\nto place any sharp limitation on the category of\nand available to public only under a set fee\n\"records\" when it defined them as materials\nsystem, deemed not to be agency records).\nmade in the performance of the ordinary func-\n788\n617 FEDERAL REPORTER, 2d SERIES\ncould be described as advising the President\ndid not deem the Office to be a non-agency\non the conduct of foreign relations, his se-\nin that specific context.\nlection of ambassadors, and utilization of\nThe logical conclusion from the FOIA\nthose ambassadors abroad. We could hard-\nlanguage and from Soucie is that, depend-\nly say all the documents in the Department\ning on its general nature and functions, a\nof State relating to the Secretary advising\nparticular unit is either an agency or it is\nthe President were not \"agency records,\"\nnot. Once a unit is found to be an agency,\nalthough a substantial percentage of these\nthis determination will not vary according\nagency records might well be protected\nto its specific function in each individual\nfrom disclosure by one of the FOIA exemp-\ncase. There is an obvious exception where\ntions.\nprivate entities and their documents are\nTurning to another argument of the\ncontrolled by agencies in limited circum-\nGovernment to classify the Attorney Gener-\nstances; there the private entity certainly\nal as a non-agency in this case, the appellee\ndoes not become a government agency ir-\npoints to the rule that \"agency\" does not\nrevocably for all its activities.²² But we can\ninclude the President's immediate personal\nsee no basis for excepting the Attorney\nstaff or Executive Office units whose sole\nGeneral and the Department of Justice; we\nfunction is to advise the President. This\nfind they are an agency without respect to\nrule was set forth in our opinión in Soucie\ntheir particular functions in individual\nV. David,¹ and endorsed by the Conference\ncases.\nCommittee Report on the 1974 FOIA\nThe Government argues that nomination\nAmendments.\" As expounded in these two\nof judges is a purely presidential function;\nsources, however, the rule applies only to\nthat had the President himself solicited this\nthe initial decision of whether a unit falls\ninformation from Senators, their responses\nwithin the category of \"agency\" for FOIA\nto him would be exempt from the FOIA;\npurposes. Neither Soucie V. David, nor the\nand that the President's choice to draw the\nCommittee Report implies that once a unit\nAttorney General into this presidential ac-\nhas been found to be an agency, one of its\ntivity should not make the responses dis-\ncomponent parts can nevertheless be treat-\nclosable. Such an approach, defining\ned as a non-agency when engaged in presi-\n\"agency records\" by the purpose for which\ndential advisory functions.\nthey exist, would cut back severely on the\nSoucie found that the Office of Science\nFOIA's reach as interpreted by courts since\nand Technology was an agency, because the\nits inception. Documents of the Central\nOffice had functions in addition to advising\nIntelligence Agency and the National Se-\nthe President. But the opinion did not\ncurity Agency are compiled precisely for\nintimate that the Office might be an agen-\nthe function of advising the President in\ncy only when performing its non-advisory\nthe solely presidential role of Commander-\nfunctions, and still be a presidential staff\nin-Chief. Yet in many FOIA encounters\ncomponent, or non-agency, when perform-\nwith NSA and CIA, we have never held or\ning its other function of advising the Presi-\nseriously considered that they might not be\ndent. In fact, the reports under considera-\n\"agencies\" when acting in this capacity.\ntion in Soucie were requested by the Presi-\nAs we indicated above, other departments\ndent precisely for advisory purposes, but we\n-State, Defense-come quickly to mind as\n18. 145 U.S.App.D.C. 144, 150-53, 448 F.2d\n20. See 145 U.S.App.D.C. at 150-53, 448 F.2d at\n1067, 1073-76 (D.C. Cir. 1971).\n1073-76.\n19. See S.Rep.No.1200, 93d Cong., 2d Sess. 15\n21. See id., 145 U.S.App.D.C. at 152-155, 448\n(1974). Failure to exempt presidential staff\nF.2d at 1075-76.\nfrom the FOIA would raise a constitutional\n22. See Forsham V. Califano, 190 U.S.App.D.C.\nissue of separation of powers. See Soucie V.\n231, 236-41; 587 F.2d 1128, 1133-38 (D.C. Cir.\nDavid, 145 U.S.App.D.C. at 157-58, 448 F.2d at\n1978), cert. granted, 441 U.S. 942, 99 S.Ct.\n1080-81 (Wilkey, J., concurring).\n2159, 60 L.Ed.2d 1044 (1979).\nRYAN V. DEPARTMENT OF JUSTICE\n789\nCite as 817 F.2d 781 (1980)\nexamples where the Government's argu-\nemption 5 of the FOIA. The district court\nment proves far too much. Many cabinet\ndid not decide this issue, since it considered\nofficers, like the Attorney General, or the\nthe agency records issue a sufficient basis\nOffice of Legal Counsel under him, act as\non which to dispose of the case. An appel-\nadvisors to the President for many of their\nlate court normally does not give considera-\nimportant functions; yet they are not mem-\ntion to issues that were neither raised nor\nbers of the presidential staff or exclusively\ndecided below; 24 in this case, however, the\npresidential advisors, and are thus not ex-\nExemption 5 issue was raised and briefed in\nempt from FOIA requirements. The\nsummary judgment motions before the dis-\nGovernment cites a district court case\ntrict court. On those portions of the Ex-\nwhich held the Pardon Attorney of the Jus-\nemption 5 issue that we decide today, we do\ntice Department not to be an agency for\nnot believe there is any doubt as to the\nFOIA purposes, because his sole function is\nproper resolution of the case, and the delay\nto advise and assist the President. What-\nof extensive further proceedings in district\never the merits of this reasoning-yet to be\ncourt could render appellants' efforts futile.\ndetermined in this court-we face an easier\nquestion in this case because the Attorney\nThus it is fully appropriate for us to pro-\nGeneral has functions in addition to advis-\nceed to the Exemption 5 issue.\ning the President. Any unit or official that\nExemption 5 applies to \"inter-agency or\nis part of an agency and has non-advisory\nintra-agency memorandums or letters\nfunctions cannot be considered a non-agen-\nwhich would not be available by law to a\ncy in selected contexts on a case-by-case\nparty other than an agency in litigation\nbasis.\nwith the agency.\" Appellants argue that\nIt is certainly true, as the Government\nsince the documents at issue here were sub-\ncontends, that had the President's staff it-\nmitted to the Department of Justice by\nself solicited these responses from Senators,\nSenators, who are not agencies within the\nthe documents would not be agency records.\nmeaning of the FOIA, the documents can-\nIn many different areas the President has a\nnot be termed \"inter-agency\" or \"intra-\nchoice between using his staff to perform a\nagency.\"\nfunction and using an agency to perform it.\nWhile not always substantively significant,\n[4] When interpreted in light of its pur-\nthese choices are often unavoidably signifi-\npose, however, the language of Exemption\ncant for FOIA purposes, because the Act\n5 clearly embraces this situation. The ex-\ndefines agencies as subject to disclosure and\nemption was created to protect the deliber-\npresidential staff as exempt. To redraw\native process of the government, by ensur-\nthis statutory line in a different manner,\ning that persons in an advisory role would\nbased on complex functional considerations,\nbe able to express their opinions freely to\nwould strain the language of the Act and\nagency decision-makers without fear of\npresent much greater complexity in litiga-\npublicity.* In the course of its day-to-day\ntion.\nactivities, an agency often needs to rely on\nthe opinions and recommendations of tem-\nIII. THE APPLICABILITY OF\nporary consultants, as well as its own em-\nFOIA EXEMPTION 5\nployees. Such consultations are an integral\n[3] We proceed now to consider whether\npart of its deliberative process; to conduct\nthe requested documents fall within Ex-\nthis process in public view would inhibit\n23. See Stassi V. Department of Justice, No.\n26. 5 U.S.C. & 552(b)(5) (1976).\n78-532 (D.D.C.1979).\n27. See H.R.Rep.No.1497, 89th Cong., 2d Sess.\n24. See Hormel V. Helvering, 312 U.S. 552, 556-\n10 (1966); S.Rep.No.813, 89th Cong., 1st Sess.\n57, 61 S.Ct. 719, 85 L.Ed.2d 1037 (1941).\n9 (1965), U.S.Code Cong. & Admin.News 1966,\np. 2418.\n25. See Singleton v. Wulff, 428 U.S. 106, 121, 96\nS.Ct. 2868, 49 L.Ed.2d 826 (1976).\n790\n617 FEDERAL REPORTER, 2d SERIES\nfrank discussion of policy matters and likely\ndocument to be an \"intra-agency\" memo-\nimpair the quality of decisions.\nrandum for purposes of determining the\n[5-7] We start from the proposition that\napplicability of Exemption 5. This common\nFOIA exemptions are to be interpreted nar-\nsense interpretation of \"intra-agency\" to\nrowly. The Senate Committee attempted\naccommodate the realities of the typical\nto keep Exemption 5 as narrow as was\nagency deliberative process has been con-\n\"consistent with efficient Government oper-\nsistently followed by the courts.\nation.\" 28 Unquestionably, efficient govern-\n[8-10] Exemption 5 protects only those\nment operation requires open discussions\nmemoranda which would not normally be\namong all government policy-makers and\ndiscoverable in civil litigation against an\nadvisors, whether those giving advice are\nagency.\" The standard of what is discover-\nofficially part of the agency or are solicited\nable in civil litigation against an agency, as\nto give advice only for specific projects.\ninterpreted by the Supreme Court, indicates\nCongress apparently did not intend \"inter-\nthat purely factual material which is sever-\nagency\" and \"intra-agency\" to be rigidly\nable from the policy advice contained in a\nexclusive terms, but rather to include any\ndocument, and which would not compromise\nagency document that is part of the deliber-\nthe confidential remainder of the document,\native process. We cannot overlook the fact\nmust be disclosed in an FOIA suit. This\nthat the documents here were generated by\ncourt has further elaborated the standard\nan initiative from the Department of Jus-\nfor determining which segments of an ad-\ntice, i. e., the questionnaire sent out by the\nvisory document are disclosable under Ex-\nDepartment to the Senators. The Senators\nemption 5. We have held that factual seg-\nreplied to the questionnaire. The question-\nments are protected from disclosure as not\nnaire plus replies must correspond in origin\nbeing purely factual if the manner of se-\nand process to literally millions of docu-\nlecting or presenting those facts would re-\nments and memoranda of various kinds on a\nveal the deliberate process,³ or if the facts\nmyriad of subjects which repose in the files\nare \"inextricably intertwined\" with the pol-\nof the executive departments and indepen-\nicy-making process. The Supreme Court\ndent agencies, i. e., memoranda which were\nhas substantially endorsed this standard.\ncreated by someone outside the executive\nbranch but in response to an initiative from\n[11-13] As an additional ground, appel-\nthe executive branch. When an agency\nlants argue that advisory material in the\nrecord is submitted by outside consultants\nquestionnaires should be disclosed if it rep-\nas part of the deliberative process, and it\nresents a final decision rather than interim\nwas solicited by the agency, we find it\nadvice. Exemption 5 does not apply to\nentirely reasonable to deem the resulting\nfinal actions of agencies, in the sense of\n28. S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965).\n31. 5 U.S.C. § 552(b)(5) (1976).\n29. For example, the Department of Agriculture\n32. See Environmental Protection Agency V.\nmust have bales of information in response to\nMink, 410 U.S. 73, 91, 93 S.Ct. 827, 35 L.Ed.2d\nquestionnaires.\n119 (1973).\n30. See Brockway V. Department of Air Force,\n33. See Montrose Chem. Corp. V. Train, 160\n518 F.2d 1184, 1191 (8th Cir. 1975) (statements\nU.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.\nof witnesses in a military aircraft safety investi-\nCir. 1974).\ngation are within Exemption 5); Wu V. Nation-\nal Endowment for Humanities, 460 F.2d 1030,\n1032 (5th Cir. 1972) (statements of professors\n34. See Soucie V. David, 145 U.S.App.D.C. at\nwho were not agency employees deemed to be\n155, 448 F.2d at 1078.\nintra-agency memoranda), cert. denied, 410\nU.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973);\n35. See Environmental Protection Agency V.\nSoucie V. David, 145 U.S.App.D.C. 144, 155,\nMink, 410 U.S. 73, 92, 93 S.Ct. 827, 838, 35\n448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) (mate-\nL.Ed.2d 119 (1973).\nrials prepared for an agency by outside experts\nshould be treated as intra-agency memoranda).\nRYAN V. DEPARTMENT OF JUSTICE\n791\nCite as 617 F.2d 781 (1980)\n10-\nstatements of policy and .final opinions\n5. With respect to each person recom-\nhe\nwhich have the force of law or which ex-\nmended, submit a copy of any question-\non\nplain actions an agency has already taken.\nnaire or resume of biographical informa-\nto\nFurther, Exemption 5 applies only to com-\ntion furnished by that person.\nmunications before the adoption of an agen-\n6. If a nominating commission was\nin-\ncy policy; communications that promulgate\nused:\nor implement an established policy are not\nprivileged. In the present case, however,\n(a) how was the commission appoint-\nse\nthe communications all precede the\ned?\nadoption of any agency policy-i. e., the\n(b) how many persons were on the\nan\nAttorney General's evaluation of selection\ncommission?\nis\nprocesses and transmittal of his own recom-\n(c) how many of the members were\nas\nmendations to the President-and also pre-\nfemale?\ncede the final action on nominations that\n(d) how many of the members were\ncan only be taken by the President with\nof a minority race?\nconsent of the Senate. That an individual\nSenator may have taken final action by\n(e) how many of the members were\ndeciding which potential nominees he will\nnon-lawyers?\nrecommend, as urged by. appellants, is not\nSome segments of Senators' responses to\n2\nmaterial to whether the documents consti-\nthese questions will be factual, and disclo-\nd-\ntute a final opinion or action of an agency.\nsure of them will not reveal aspects of the\nHence finality cannot justify disclosure of\ndeliberative process. Answers to questions\nde\nthe questionnaire answers in this case.\n3 and 6 will clearly be of this nature. Ex-\not\n[14] We conclude that the requested\npressions of personal views or recommenda-\nde\ndocuments are exempt from FOIA disclo-\ntions of a Senator, on the other hand, are\nsure under Exemption 5, except for factual\nclearly exempt from disclosure. Other seg-\nto\nsegments which do not reveal the delibera-\nments of responses may or may not be\ntive process and are not intertwined with\nsubject to disclosure, depending on circum-\nthe policy-making process. On remand the\n35\nstances to be evaluated on remand. Any\ndistrict court will determine which seg-\nbiographical information of a routine, non-\nments are disclosable under this standard.\nprivate nature, such as would commonly\nhe\nBecause expedition is necessary in this case,\nappear in Who's Who or similar reference\nwe comment on those aspects of disclosabili-\nworks, is not inextricably intertwined with\nty that are clear on the record before us.\nthe protected deliberative process of mak-\nto\nThe questionnaires sent by the Attorney\ning recommendations, and is thus subject to\nGeneral to the Senators asked for the fol-\ndisclosure. Other more probing analysis of\nlowing information:\na candidate's background, on the other\n1. Describe the effort which was\nhand, might constitute a specific recommen-\nmade to identify qualified candidates.\ndation of the candidate on grounds of his\n2. Describe the process by which all\nqualifications and experience, and thus be\npersons identified and interested were\nexempt.\nconsidered?\n3. How many persons were con-\nsidered?\nIV. EXEMPTION 6 ISSUE\n4. With respect to each person recom-\n[15] The Government claims on appeal\nmended, does he or she meet each of the\nthat some portions of the Senators' respons-\nstandards set forth in Section 2 of the\nes to the Department questionnaire may be\nExecutive Order?\nwithin FOIA Exemption 6, for \"personnel\n36. See National Labor Relations Board V.\n37. See Jordan V. United States Department of\nSears, Roebuck & Co., 421 U.S. 132, 153-54, 95\nJustice, 192 U.S.App.D.C. 144, 165, 591 F.2d\nS.Ct. 1504, 44 L.Ed.2d 29 (1975).\n753, 774 (D.C. Cir. 1978) (en banc).\n792\n617 FEDERAL REPORTER, 2d SERIES\nand medical files and similar files the dis-\nshow extraordinary circumstances. On the-\nclosure of which would constitute a clearly\npresent record, the need to claim such ex-\n1\nunwarranted invasion of personal priva-\ntraordinary circumstances is diminished by\ncy,\" 38 and that the Government should be\nthe likelihood that sensitive material\nallowed to raise this exemption upon re-\ning on a potential nominee will be inter\nmand to the district court. The Govern-\ntwined with advice based on his qualifica\nJo\nment did not raise Exemption 6, however,\ntions and experience, and thus come within\nF\nin the original proceedings before the dis-\nExemption 5.\ntrict court. This court has held that an\nagency must identify the specific statutory\nV. CONCLUSION\nexemptions relied upon, and do so at least\nby the time of the district court proceed-\n[16] Since we find the requested does-\nings.³⁹ This the Government has failed to\nments to be agency records, we must order\ndo. The danger of permitting the Govern-\ndisclosure of all segments not within specif\nment to raise its FOIA exemption claims\nic FOIA exemptions. On remand, the dis-\none at a time, at different stages of a\ntrict court will, according to accepted proce-\ndistrict court proceeding, is especially ap-\ndures, order the Government to disclose all\nparent in this case, where any delay\npurely factual material in the responses and\nFede\nthrough this means could easily render the\nto identify those advisory segments protect-\ning t\nappellants' claim futile. We therefore hold,\ned by Exemption 5.41 It may then be neces-\nly in\nin accordance with our en banc decision in\nsary for the district court to inspect docu-\nthe si\nJordan V. U. S. Department of Justice, that\nments in camera to decide if individual seg-\nmate\nthe Government may not raise FOIA Ex-\nments do properly fall within Exemption 5.\ntrack\nemption 6 upon remand to the district\nThe judgment of the district court is vacat-\nhour\ncourt.\ned and the case remanded for further pro-4\ntions.\nAs we have noted in Jordan, there is a\nceedings in accordance with this opinion.\nthe I\npossible exception to this disqualification,\nSo ordered.\nJ., he\nunder 28 U.S.C. § 2106, in that the appellate\nthe\ncourt has discretion to remand the case and\ngrant\n\"require such further proceedings to be\nroad,\nhad as may be just under the circumstane-\nthe in\nes.' 40 This could happen in the present\nKEY NUMBER SYSTEM\nistrat\ncase if sensitive, personal private informa-\npendi\ntion might be revealed. The Government\nthat :\nmay of course raise such a claim if warrant-\nthe &\ned at the district court, but only if it can\norder\nadmi\n38. 5 U.S.C. $ 552(b) (1976).\napply, the Government did not meet its burden\"\nof demonstrating that the exemption applies.\nwas 1\n38a. In its Petition for Rehearing, the Govern-\nThe Government did not assert Exemption 6 as\nI\nment points out that it did mention Exemption\na defense in a manner in which the district\n6 in one sentence of a footnote to its Memoran-\ncourt could rule on the issue. Thus the govern-\n1\ndum of Points and Authorities submitted to the\nment did not \"raise\" Exemption 6 at the district\nfiled\ndistrict court. The purpose of this footnote\ncourt level in the manner required by Jordan.\nwas to inform the district court that the\nI\nGovernment did not wish its assertion of Ex-\n39. See Jordan V. United States Department of\nemption 5 to be construed as waiving the possi-\nJustice, 192 U.S.App.D.C. at 170, 591 F.2d at\nble applicability of remaining exemptions under\n779.\nFede\nsection 552(b), for example Exemption 6. Our\nopinion in Jordan V. United States Department\nof Justice, however, requires that the agency\n40. Id. 192 U.S.App.D.C. at 171, 591 F.2d at 780\ninjur\nraise the exemption by identifying it at the\n(quoting 28 U.S.C. $ 2106 (1976)).\nstrai\ndistrict court level and by demonstrating that\n41. See Vaughn V. Rosen, 157 U.S.App.D.C. 340,\nfrom\nthe exemption applies to the documents in\nquestion. See 591 F.2d at 779. By simply\n484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415\noper\nstating that \"for example\" Exemption 6 might\nU.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).\nnied\n838\n636 FEDERAL REPORTER, 2d SERIES\nthese factors as they appear in the case at\nera review of certain documents was neces-\n5. Rec\nbar, the court should have construed all\nsary; and (4) the court properly denied the\nCe\nambiguous or disputed facts in the light\nCIA's motion for partial relief from judg-\ntled t\nmost favorable to the defendants. Had this\nment, which included an offer of an in\nchurch\nbeen done, the defendants' motion to vacate\ncamera affidavit.\nin cart\nthe entry of the default judgment would\nAffirmed in part, reversed and remand-\nintellig\nhave been granted. We therefore reverse\ned in part.\ncontain\nand remand for entry of an order setting\nAgenc\naside the default judgment and for further\ntee\nproceedings not inconsistent with this deci-\n1. Records\n53\n§ 552(\nsion.\nCongress can assert its exemption from\n§ 102(\nReversed and remanded.\nFreedom of Information Act and can also\nreassert the exemption; however, exemp-\n6. Fed\ntion can be lost if there is a request for\nRec\ndocuments at a time when Congress has not\nA\nKEY NUMBER SYSTEM\ndesignated the documents as falling within\ntended\ncongressional control. 5 U.S.C.A.\nfrom\n$ 551(1)(A).\nshow,\ndocum\n2. Records\n53\ndavits\nHOLY SPIRIT ASSOCIATION FOR THE\nAn entire document is not exempt from\nconclu\nUNIFICATION OF WORLD\nFreedom of Information Act merely be-\ndards,\nCHRISTIANITY, Appellant,\ncause isolated portions of it may be protect-\nif aff\ned from disclosure. 5 U.S.C.A. § 552.\nV.\nsuffici\nCENTRAL INTELLIGENCE AGENCY\n3. Records\n54\nexemp\nand Stansfield Turner.\nThirty-five documents generated by\nnot co\nCongress and requested by church from\nis no\nNos. 79-2143, 79-2202.\nCentral Intelligence Agency under Freedom\nsumm\nUnited States Court of Appeals,\nof Information Act were not excluded from\nin can\nDistrict of Columbia Circuit.\ndisclosure as congressional records, in that\nC.A. $\neven if they were once excluded as congres-\n7. Re\nArgued Sept. 9, 1980.\nsional records, they were no longer covered\nT\nDecided Dec. 23, 1980.\nby that exemption since nothing either in\ndeterr\nAs Amended April 2, 1981.\ncircumstances of their creation or in condi-\ntral 1\ntions under which they were sent to the\nAppeals were taken from an order of\nnecess\nCIA indicated Congress' intent to retain\nthe United States District Court for the\ndocum\ncontrol over the records or to preserve\nDistrict of Columbia, Gerhard A. Gesell, J.,\nder F1\ntheir secrecy. 5 U.S.C.A. § 551(1)(A).\nruling that most of the material requested\nal sec\nby church from Central Intelligence Agency\n4. Records\n54\nvits w\nunder the Freedom of Information Act was\nDocuments created by Central Intelli-\nimpos\nexempt, but ordering disclosure of segments\ngence Agency which were related to a con-\nof the\nof certain documents. The Court of Ap-\ngressional investigation were not exempt\nsecuri\npeals, Mikva, Circuit Judge, held that: (1)\nfrom disclosure under Freedom of Informa-\n8. Re\nneither the Congress-created records trans-\ntion Act as congressional records, in that\nT\nferred to the CIA nor the CIA-generated\neven if they were once congressional docu-\ndistri\ndocuments sent to Congress were con-\nments since they were generated in re-\nsegm\ngressional records immune from disclosure;\nsponse to congressional inquiry and trans-\nAgen\n(2) the CIA was entitled to withhold certain\nferred to Congress, they subsequently lost\nunde\ndocuments in carrying out its statutory duty\ntheir exemption when Congress failed to\nhave\nto protect intelligence sources; (3) the dis-\nretain control over them. 5 U.S.C.A.\nquire\ntrict court properly determined that in cam-\n$ 551(1)(A).\nover\nHOLY SPIRIT ASS'N, ETC. V. C. I. A.\n839\nCite as 636 F.2d 838 (1980)\n5. Records\n55\ntents, and Agency did not allege any preju-\nCentral Intelligence Agency was enti-\ndice to its efforts on appeal from failure of\n6.0\ntled to withhold documents sought by\ncourt to give a full explanation for its order\nin\nchurch under Freedom of Information Act\nof disclosure. 5 U.S.C.A. § 552.\nin carrying out its statutory duty to protect\n9. Records\n67\nintelligence sources, in that information\nDistrict court did not abuse discretion\ncontained in documents was of type that\nin denying Central Intelligence Agency's\nAgency could not obtain without a guaran-\nmotion for partial relief from judgment or-\ntee of confidentiality. 5 U.S.C.A.\ndering it to disclose documents pursuant to\n§a552(b)(3); National Security Act of 1947,\nFreedom of Information Act and refusing\n§ 102(d)(3), 50 U.S.C.A. § 403(d)(3).\n8\nAgency's post-judgment offer of an in cam-\n6. Federal Civil Procedure\n2539\nera affidavit explaining in greater detail\nor\nRecords\n65, 66\nAgency's determination that the material\nAffidavits submitted by an agency in-\nwas covered by exemptions. 5 U.S.C.A. $\ntended to show exemption of documents\n552(b)(1,3).\nfrom Freedom of Information Act must\nshow, with reasonable specificity, why the\nAppeal from the United States District\ndocuments fall within the exemption; affi-\nCourt for the District of Columbia (D.C.\ndavits will not suffice if agency's claims are\nCivil Action No. 79-0151).\nconclusory, merely reciting statutory stan-\ndards, or if they are too vague or sweeping;\nDorothy Sellers, Washington, D. C., for\nif affidavits provide specific information\nappellant.\nsufficient to place documents within the\nFreddi Lipstein, Atty., Civ. Div., Dept. of\nexemption category, if such information is\nJustice, Washington, D. C., with whom Al-\nby\nnot contradicted in the record, and if there\nice Daniel, Asst. Atty. Gen., Charles F. C.\ne\nis no evidence of agency bad faith, then\nRuff, U.S. Atty., and Leonard Schaitman,\nm\nsummary judgment is appropriate without\nAtty., Civ. Div., Dept. of Justice, Wash-\nm\nin camera review of the documents. 5 U.S.\nington, D. C., were on the brief, for appel-\nC.A. § 552(b).\nlee.\n7. Records\n66\nStanley M. Brand, Gen. Counsel to the\nd\nTrial court did not abuse discretion in\nClerk, United States House of Representa-\ndetermining that in camera review of Cen-\ntives, Washington, D. C., with whom Steven\n1\ntral Intelligence Agency documents was\nR. Ross, Asst. Counsel to the Clerk, Wash-\nnecessary to determine Agency's claim that\nington, D. C., was on the brief, for amicus\ndocuments were exempt from disclosure un-\ncuriae, Clerk of the United States House of\nder Freedom of Information Act for nation-\nRepresentatives.\nal security reasons where Agency's affida-\nBefore BAZELON, Senior Circuit Judge,\nvits were of a general nature which made it\nand MIKVA and EDWARDS, Circuit\nimpossible to undertake meaningful review\nJudges.\nof the CIA's claims in the area of national\nsecurity. 5 U.S.C.A. § 552(a)(4)(B), (b)(1).\nOpinion for the Court filed by Circuit\nJudge MIKVA.\n8. Records\n63\nWhile a more complete indication of\nMIKVA, Circuit Judge:\ndistrict court's rationale for its order that\nIn May of 1978, appellant (Unification\nsegments of a few Central Intelligence\nChurch) filed a request pursuant to the\nAgency documents be disclosed to church\nFreedom of Information Act (FOIA or Act),\nunder Freedom of Information Act would\n5 U.S.C. § 552 (1976), for all Central Intelli-\nhave been helpful, such failure did not re-\ngence Agency (CIA or Agency) records re-\nquire reversal, in that Agency had custody\nlating to the Church or to its members.\nover documents and knowledge of their con-\nWhen the Agency failed to respond, appel-\n840\n636 FEDERAL REPORTER, 2d SERIES\nlant filed this action for injunctive relief.\nOn cross-appeal, the CIA challenges the\nSince then, the Agency has disclosed some\ncourt's order of disclosure with respect to\ndocuments in their entirety but, claiming a\nsix documents. The Agency alleges three\nvariety of exemptions, has withheld parts\nerrors: that the court did not give substan-\nor all of others. On cross-motions for sum-\ntial weight to the Agency's affidavits; that\nmary judgment, and after examining the\nthe court failed to articulate reasons for its\ndocuments in camera, the court below ruled\ndisclosure order; and that the court refused\nthat most of the unreleased material was\nto accept the Agency's post-judgment offer\nexempt. The court did, however, order dis-\nof further evidence in the form of an in\nclosure of at least segments of nine docu-\ncamera affidavit. We reject all arguments\nments. Each party appeals from that por-\nraised on the cross-appeal.\ntion of the district court's order adverse to\nit.1\nThe Church appeals the court's ruling\nI. COMMUNICATIONS BETWEEN\nthat about fifty of the documents were not\nCONGRESS AND THE CIA\nagency records because they were subject to\ncongressional control and therefore were\nA. Records Generated by Congress\nexempt under 5 U.S.C. § 551(1)(A) (1976).\nOf these documents, thirty-five were gener-\nThirty-five of the documents the Church\nated by Congress and sent to the CIA for\nseeks are, in the words of the court below,\nreasons that are in dispute. The remaining\n\"correspondence and memoranda originated\nfifteen originated in the Agency but were\nby one of four congressional committees\nrelated to congressional investigations;\nthat investigated various aspects of Korean-\nsome of these records were sent to Congress\nAmerican relations between 1976 and 1978.\"\nand were then returned to the CIA-again\nMem. op. at 3, JA at 115 (footnote omitted).\nfor reasons that are not entirely clear. We\nThese materials were, the district court\nfind that these fifty documents, even if\nfound, sent to the CIA for safekeeping.\nonce excluded from the FOIA as congres-\nRelying on this court's opinion in Goland V.\nsional records, are no longer covered by that\nCentral Intelligence Agency, 607 F.2d 339\nexemption because Congress failed to ex-\n(D.C.Cir.1978), vacated in part on other\npress with sufficient clarity its intent to\ngrounds, 607 F.2d 367 (D.C.Cir.1979), cert.\nretain control over the documents. We\ndenied, 445 U.S. 927, 100 S.Ct. 1312, 63\ntherefore reverse the district court's hold-\nL.Ed.2d 759 (1980), the court below ruled\ning with respect to these records and re-\nthat, because Congress retained control\nmand for consideration of other exemptions\nover the thirty-five documents, they were\nof the Act which the Agency claimed apply\nnot \"agency records\" subject to disclosure\nto these records and on which the court\nunder the FOIA.\nbelow had no occasion to rule.\nThe Church also disputes the district\nAlthough Goland does stand for the prop-\ncourt's holding that the CIA could invoke\nosition that records in an agency's posses-\nFOIA exemption 3 and refuse to disclose\nsion may be congressional documents, as\nten documents in order to protect intelli-\nopposed to agency records, that case does\ngence sources under 50 U.S.C. § 403(d)(3)\nnot support the conclusion of the court be-\n(1976). Relying on this court's recent opin-\nlow. In Goland, this court began by noting\nion in Sims V. Central Intelligence Agency,\nthat \"agency\" as defined in the Administra-\nNos. 79-2203 & 79-2554 (D.C.Cir. Sept. 29,\ntive Procedure Act does not include Con-\n1980), we affirm the court's finding of\ngress. See 5 U.S.C. § 551(1)(A) (1976).\nexemption.2\nFinding that Congress has the authority to\n1. The district court's opinion, Civ. No. 79-0151\ntected by FOIA exemptions 1, 3, and 6. Some\n(D.D.C. July 30, 1979), is reprinted in the Joint\nof these documents are involved in the cross-\nAppendix (JA) at 113.\nappeal, but the Church has not challenged the\ndistrict court's order that the bulk of the unre-\n2. The court agreed with the CIA that the other\nleased material is exempt.\ndeleted portions of the documents were pro-\nHOLY SPIRIT ASS'N, ETC. V. C. I. A.\n841\nCite as 636 F.2d 838 (1980)\nkeep its records secret, the court articulated\nCIA's structure and disposition of func-\nthe following test for determining the ap-\ntions.\" 607 F.2d at 347 (footnote omitted).\nplicability of the FOIA to documents such\nas those requested here:\n[2] In contrast, the circumstances sur-\nWhether a congressionally generated doc-\nrounding Congress' creation of the docu-\nument has become an agency record\nments requested by the Church do not dem-\ndepends on whether under all the facts of\nonstrate any intent that they be kept se-\nthe \"case the document has passed from\ncret. The district court failed to analyze\nthe control of Congress and become prop-\nthis first element of the Goland test, and\nerty subject to the free disposition of the\nappellees can only assert that the records\nwere \"created in the context of sensitive\nagency with which the document resides.\ninvestigations concerning Korean-American\n607 F.2d at 347. The court considered two\nrelations.\" Brief for Appellee at 31. Al-\nfactors dispositive: the circumstances at-\nthough perhaps sensitive, not every aspect\ntending the document's creation and the\nof the work of these congressional commit-\nconditions under which it was transferred\ntees was confidential; in fact, the House\nto the agency. Consideration of those fac-\nSubcommittee on International Relations\ntors led the court to hold that the document\nsought by plaintiffs there-a stenographic\npublished a 1200-page report on the investi-\ntranscript of hearings held before a House\ngation. Appellees' general characterization\ncommittee, which had been forwarded to\nthus does not suffice to prove that no part\nthe CIA-was a congressional, rather than\nof the thirty-five documents may be dis-\nclosed.3\nan agency, record.\n[1] Thus, Congress can assert its exemp-\nThe second prong of the Goland test in-\ntion from the FOIA; it can also reassert\nquires whether Congress transferred the\nthe exemption. But the exemption can be\nrecords in such a way as to manifest its\nlost if there is a request for documents at a\nintent to retain control. In Goland, for\ntime when Congress has not designated the\nexample, this court found that\ndocuments as falling within congressional\n[t]he fact that the CIA retains the Tran-\ncontrol.\nscript solely for internal reference pur-\nposes indicates that the document is in no\nComparison of the facts of Goland with\nthose involved here convinces us that Con-\nmeaningful sense the property of the\ngress did not indicate its intent to maintain\nCIA; the Agency is not free to dispose of\nthe Transcript as it wills, but holds the\ncontrol over the documents requested by\nthe Church. The hearing transcript at issue\ndocument, as it were, as a \"trustee\" for\nin Goland was quite obviously meant to be\nCongress.\nsecret: the congressional committee met in\n607 F.2d at 347 (emphasis supplied).\nexecutive session to conduct the hearing;\n[3] Here, the Agency maintains-and\nthe stenographer and typist were sworn to\nthe district court agreed-that the CIA was\nsecrecy; and the transcript was marked\ngiven the records for safekeeping. But the\n\"Secret.\" In addition, the confidential na-\nrecord does not support that finding. The\nture of the transcript was evident-it was\nAgency affidavit discussing these docu-\nknown to contain \"discussions of basic ele-\nments does not specify the purpose of their\nments of intelligence methodology, both of\ntransfer to the CIA. See Affidavit of Fred-\nthis country and of friendly foreign govern-\nerick P. Hitz, CIA Legislative Council, JA\nments, as well as detailed discussions of the\nat 99.4 Moreover, that affidavit makes\n3. An entire document is, of course, not exempt\n4. In contrast, in describing three sealed cartons\nmerely because isolated portions of it may be\nof other documents transferred to the CIA from\nprotected from disclosure. See Vaughn V. Ro-\nthe House Committee on International Rela-\nsen, 484 F.2d 820, 825 (D.C.Cir.19 cert. de-\ntions, the affidavit specifies that \"[s]ince the\nnied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d\ncartons are merely held by CIA in security\n873 (1974).\ncustody, the actual contents are not known to\nCIA.\" JA at 100.\n842\n636 FEDERAL REPORTER, 2d SERIES\nclear that only some congressional- docu-\nsafekeeping. See Hitz Affidavit, JA at 100.\nments transferred to the C1A contain classi-\nThe thirty-five documents in dispute here,\nfied information or details of intelligence\non the other hand, were forwarded to the\nactivities. See id. at 100.\nCIA without any such instructions, and the\nAs evidence of Congress' intent to retain\nAgency appears to be aware of their con-\ncontrol over these records, the court below\ntent.\nand appellees do point to a letter to the CIA\nAlthough we hold that Congress failed to\nfrom the Clerk of the House of Representa-\nassert control over these thirty-five docu-\ntives, which objected to the release of any\nments, we do not adopt appellant's posi-\nportion of the thirty-five documents. See\ntion-that Congress must give contempora-\nJA at 104. But this letter was written as a\nneous instructions when forwarding con-\nresult of the Church's FOIA request and\ngressional records to an agency. Nor do we\nthis litigation-long after the actual trans-\ndirect Congress to act in a particular way in*\nfer to the CIA. See id. ; Document Dispo-\norder to preserve its FOIA exemption for\nsition Index, JA at 75. We do not consider\ntransferred documents. Nevertheless, both\nthe letter sufficient evidence that Congress\nthe spirit of the Act and Goland require\nforwarded the documents to the Agency\nsome clear assertion of congressional con-\nonly \"for a limited purpose and on condition\ntrol. Nothing here-either in the circum-\nof secrecy.\" Goland, 607 F.2d at 348 n.48.\nstances of the documents' creation or in the\nCf. Halperin V. Department of State, 565\nconditions under which they were sent to\nF.2d 699, 705 (D.C.Cir.1977) (remarks re-\nthe CIA-indicates Congress' intent to re-\ngarding national security justification for\ntain control over the records or to preserve\nclassification of press conference transcript,\ntheir secrecy.\nwhich were made five months after classifi-\ncation and eight months after press confer-\nB. Records Generated by the CIA\nence, did not necessarily reflect true reasons\n[4] Also in dispute are fifteen docu-\nfor classification).\nments created by the CIA and related to\nComparison of the circumstances sur-\nCongress' investigation of Korean-Ameri-\nrounding the transfer to the CIA of three\ncan relations. Eleven of these were sent to\nsealed cartons of additional congressional\nCongress in response to a congressional in-\ndocuments is instructive. These records,\nquiry and were then returned to the Agen-\nwhich are not at issue here, also relate to\ncy, again without instruction. The court\nCongress' investigation into Korean-Ameri-\nbelow read Goland as extending to these\ncan relations. When these materials were\neleven documents and to all materials pre-\nsent to the Agency, they were accompanied\npared by an agency specifically at the re-\nby a memorandum from the House Commit-\nquest of Congress. Mem. op. at 4, JA at\ntee on International Relations indicating\n116. The court refused, however, to apply\nthat the Committee retained jurisdiction\nGoland to purely internal memoranda that\nover the documents, that the documents\nare created at the initiative of the agency\ncontained classified information, and that\nand are not intended for Congress, even if\naccess to the files was limited to those with\nsuch documents relate to congressional in-\nauthorization from the Clerk of the House.\nvestigations. Id. at 4-5, JA at 116-17. The\nJA at 103. As a result of these instructions,\ncourt found that four of the fifteen docu-\nthe Agency has not opened the sealed car-\nments were merely inter- or intra-agency\ntons, does not know their contents, and\nmemoranda that were not directly sent to\nmaintains them for the express purpose of\nCongress and therefore were not entitled to\n5. We reject the Agency's assertion that the\nto the three boxes of documents which it ac-\nmemorandum accompanying the three sealed\ncompanied. See JA at 103.\ncartons of materials was intended to apply also\nto the thirty-five documents at issue here.\n6. These are Documents 47-61.\nThat memorandum seems specifically related\nHOLY SPIRIT ASS'N, ETC. V. C. I. A.\n843\nCite as 636 F.2d 838 (1980)\n100.\nexemption as congressional documents. Id.\ntion 5 of the Act, 5 U.S.C. § 552(b)(5); and\nere,\nat 5, JA at 117.⁷\nconstitutional protection of the legislative\nthe\nWe reverse the court's ruling that any of\nprocess under the Speech or Debate Clause,\nthe\nthese fifteen records qualified as congres-\nart. 1, $ 6, cl. 1. Because the court below\ncon-\nsional records. In so doing, we do not find\nfound the documents exempt as congres-\nit necessary to decide whether Goland,\nsional records, it had no occasion to rule on\nd to\nwhich involved communications from Con-\nthese additional arguments. We therefore\ngress to an agency, applies to transfers in\nremand for consideration of the applicabili-\nocu-\nthe other direction. That is, we do not\nty of these exemptions.\nosi-\nresolve the question whether agency-creat-\nora-\ned records, when sent to Congress, can lose\nII. PROTECTION OF INTELLIGENCE\ncon-\ntheir status as agency records and become\nSOURCES\nwe\nexempt from FOIA disclosure. Instead,\n[5] The second major challenge made by\ny in\nwe hold that, even if these CIA-created\nthe Church involves ten documents with-\nfor\nrecords were once congressional documents\nheld by the Agency on the ground that they\noth\nbecause generated in response to congres-\nwere covered by exemption 3 of the FOIA,\nsional inquiries and transferred to Congress,\n5 U.S.C. § 552(b)(3), because their disclosure\non-\nthey subsequently lost their exemption as\nwould endanger intelligence sources. Ex-\nim-\ncongressional records when Congress failed\nemption 3 excludes from the FOIA's cover-\nthe\nto retain control over them.\nage records specifically exempted from dis-\nto\nAgain, we rely on the two-pronged Go-\nclosure by statute. We have held that one\nre-\nland test. As with the congressional rec-\nsuch withholding statute is section 102(d)(3)\nrve\nords analyzed above, there is no evidence\nof the National Security Act of 1947, 50\nsurrounding the generation of these CIA-\nU.S.C. $ 403(d)(3) (1976), which imposes on\ncreated records indicating that Congress in-\nthe Director of Central Intelligence respon-\ntended that they remain secret. The condi-\nsibility for \"protecting intelligence sources\ntions under which they were transferred\nand methods from unauthorized disclosure.\"\nto\nback to the CIA are similarly ambiguous:\nSee, e. g., Halperin V. Central Intelligence\nto\nthey were merely returned to the Agency\nAgency, 629 F.2d 144, 147 & n.7 (D.C.Cir.\nwith no accompanying letter or instructions.\n1980); Goland V. Central Intelligence Agen-\nAppellees again point to the post hoc letter\ncy, 607 F.2d 339, 349 (D.C.Cir.1978), vacated\nn-\nfrom the Clerk of the House, but, for the\nin part on other grounds, 607 F.2d 367 (D.C.\nreasons discussed above, we find that letter\nCir.1979), cert. denied, 445 U.S. 927, 100\ninsufficient evidence of Congress' intent to\nS.Ct. 1312, 63 L.Ed.2d 759 (1980).\nretain control over these documents.\nThe Church disputes the CIA's definition\nThe Agency argues in the alternative\nof \"intelligence source\"; specifically, appel-\nthat, if the CIA-created documents are\nlant contests the Agency's right to withhold\nagency records and thus within the ambit of\ndocuments under these statutes in order to\nthe FOIA, various other exceptions man-\nprotect those who have not received a\ndate nondisclosure of all or portions of the\npledge of confidentiality from the Agency.\nmaterials: exemptions 1 and 3 of the FOIA,\nThose who voluntarily provide information\nwhich protect national security information\nto the CIA, or do so without a promise of\nand intelligence sources and methods, 5\nconfidentiality, argues the Church, are not\nU.S.C. § 552(b)(1) & (3); the deliberative\nintelligence sources within the meaning of\nprocess privilege, included within exemp-\nthe statute.\n7. The court directed the CIA to segregate non-\n8. Cf. Goland, 607 F.2d at 348 n.48 (statement\nexempt portions of these four documents (Doc-\nprepared by CIA Director and delivered before\numents 52, 53, 56, & 57). After reviewing the\nHouse Committee not a congressional docu-\nsupplemental materials and inspecting the doc-\nment).\numents in camera, the court held them protect-\ned by exemptions 1 and 3. The Church has not\nappealed from this ruling.\n844\n636 FEDERAL REPORTER, 2d SERIES\nSince briefing and argument in this case,\nThe index with respect to the remaining\nin\nthis court has addressed this issue and ex-\nfour documents does not specifically men-\nca\namined the meaning of \"intelligence\ntion confidentiality, but we are satisfied\nar\nsource\" in the context of FOIA disclosure.\nfrom the descriptions that the information\nA.\nSee Sims V. Central Intelligence Agency,\ncontained in those documents is of the type\nNos. 79-2203 & 79-2554 (D.C.Cir. Sept. 29,\nthat the Agency could not obtain without\n1980). There, we rejected the broad defini-\nlo\nguarantee of confidentiality.\" Moreover,\ntion of \"intelligence source\" advanced by\nvit\nthe Agency affidavit accompanying the\nthe CIA in that case, which included anyone\nth\nDocument Disposition Index indicates that\nproviding information rationally related to\nco\nnational security. Instead, recognizing that\nall documents withheld on the basis of ex-\ncla\nthe appropriate focus is on \"the practical\nemption 3 contain information from persons\ngi\nnecessity of secrecy,\" the court defined\nwho willingly cooperated with the CIA on a\naf\n\"intelligence source\" as follows:\npledge of secrecy. See Affidavit of Robert\nge\nE. Owen, Information Review Officer for\n19\n[A] person or institution that provides,\nthe CIA's Directorate of Operations, JA at\n60\nhas provided, or has been engaged to\n23-24.\nnie\nprovide the CIA with information of a\nWe therefore affirm the holding of the\n79\nkind the Agency needs to perform its\ncourt below, as specified in its order, see\nse\nintelligence function effectively, yet\nmem. op. at 6, JA at 118, that the Agency\nco\ncould not reasonably expect to obtain\nwas entitled to withhold some of these ten\nwithout guaranteeing the confidentiality\nag\ndocuments in their entirety, and others in\nof those who provide it.\npart, in carrying out its statutory duty to\nmi\nSlip op. at 20. The court thus declined to\nprotect intelligence sources.\nen\nadopt either the expansive construction of\n\"intelligence source\" suggested by the\nIII. THE CROSS-APPEAL\nres\ntio\nAgency in Sims or the rigid interpretation\nOn cross-appeal, the CIA challenges the\nsui\nurged upon us here by the Church.\ndistrict court's ruling that portions of five\nwi\nHaving applied the Sims definition to the\ndocuments and another entire record must\nme\ndocuments at issue here, we find no error in\nbe disclosed to the Church. The court re-\nthe finding of the court below, which in-\njected the Agency's assertions that this ma-\nspected the records in camera, that they are\nterial was protected by exemptions 1, 3, and\ncovered by exemption 3. The Document\n6.18 Although the government has turned\nDisposition Index submitted by the Agen-\nover the segments for which an exemption\n*\ncy specifically indicates that three of the\n6 claim was made, it contests the court's\nten documents are withheld because their\nfinding that exemptions 1 and 3 are inappli-\ndisclosure would identify persons who gave\ncable to these documents. Specifically, the\ninformation with the understanding that it\nAgency maintains that the court erred in\nwould be kept in confidence.¹ Three oth-\nfailing to give sufficient weight to the\ners detail \"clandestine contracts\" between\nAgency's affidavits, in not providing rea-\nthe Agency and the informant.¹¹\nsons for its disclosure order, and in reject-\n9. The Document Disposition Index describes\n12. See JA at 55-56 (Document 21); id. at 57-58\nthe various portions of the documents for\n(Document 22); id. at 58 (Document 23); id. at\nwhich the Agency claims exemption and the\n70 (Document 39).\nH\nreasons for those claims, in compliance with\nte\nthis court's opinion in Vaughn V. Rosen, 484\n13. Exemption 1, 5 U.S.C. § 552(b)(1), protects\nF.2d 820 (D.C.Clr.1973), cert. denied, 415 U.S.\nclassified, national security information. Ex-\n977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).\nemption 3, id. $ 552(b)(3), covering material\nd\nspecifically exempted by statute, prevents re-\nn\n10. See JA at 48 (Document 12); id. at 52 (Doc-\nlease of records whose disclosure would endan-\nh\nument 17); id. at 64 (Document 31).\nger intelligence sources. See section II supra.\nPersonnel and similar files whose disclosure\nh\n11. See JA at 42-43 (Document 4); id. at 45-46\nwould constitute a clearly unwarranted inva-\nI\n(Document 8); id. at 61 (Document 27).\nsion of personal privacy are protected by ex-\n1\nemption 6, 5 U.S.C. § 552(b)(6).\nHOLY SPIRIT ASS'N, ETC. V. C. I. A.\n845\nCite as 636 F.2d 838 (1980)\nemaining\ning the CIA's post-judgment offer of an in\nthe FOIA in 1974 to permit in camera in-\nally\nmen-\ncamera affidavit. We dismiss each of these\nspection, see 5 U.S.C. § 552(a)(4)(B), Con-\nsatisfied\narguments in turn.\ngress indicated its intent to facilitate in\normation\nA. Deference to Agency Affidavits\ncamera inspection and to minimize judicial\nthe\ntype\nwithout\nThe CIA alleges, first, that the court be-\nunwillingness to take an active role in re-\na\nlow failed to accord to the Agency's affida-\nviewing FOIA claims. See Allen V. Central\nIoreover,\nvits the deference required by decisions of\nIntelligence Agency, 636 F.2d 1287 at 1294-\nthe\nthis court. The FOIA directs trial courts to\n1297 (D.C.Cir.1980).\nthat\nis\nconduct de novo review of an agency's\nof\nex-\nclaims of exemption, while at the same time\n[7] The court below followed the appro-\npersons\ngiving \"substantial weight\" to the agency's\npriate procedures and standards here.\nCIA\non\na\naffidavits. See Halperin V. Central Intelli-\nFinding that the Agency's affidavits were\nRobert\ngence Agency, 629 F.2d at 147-148 (D.C.Cir.\n\"of a general nature,\" which made it \"im-\nficer\nfor\n1980); Hayden V. National Security Agency,\npossible to undertake meaningful review\"\nJA\nat\n608 F.2d 1381, 1384 (D.C.Cir.1979), cert. de-\nof the CIA's \"broad, often conclusory claims\nnied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d\nin the area of national security,\" the court\nof\nthe\n790 (1980). And, in the area of national\ndetermined that in camera review was nec-\nsee\nsecurity, as is allegedly involved here,\nessary. Mem. op. at 2, JA at 114 (footnote\nAgency\ncourts must be especially sensitive to an\nomitted). We do not find this characteriza-\nten\nagency's expertise.\ntion of the affidavits and Document Dispo-\nhers\nin\nto\n[6] Nevertheless, the affidavits sub-\nsition Index inaccurate. The descriptions of\nmitted by an agency must be specific\nthe documents are primarily conclusory and\nenough to enable the judge to execute his\noften repeat the terms of the FOIA, there-\nresponsibility to make a de novo determina-\nby impeding the court's efforts to rule on\ntion of exemption. Such affidavits will be\nthe claims of exemption. See Allen, 636 F.2d\nthe\nsufficient to justify summary judgment\nat 1292, 1294, 1298. As the court below rec-\nof\nfive\nwithout in camera inspection when they\nognized, such generality is understandable\nmust\nmeet the following standard:\nin a national security context, where a de-\nre-\n[T]he affidavits must show, with reasona-\ntailed affidavit may be as damaging to gov-\nma-\nand\nble specificity, why the documents fall\nernmental concerns as actual disclosure of\n3,\nwithin the exemption. The affidavits\nthe document.\nturned\nwill not suffice if the agency's claims are\nThe district court thus undertook to re-\nconclusory, merely reciting statutory\nourt's\nview the documents itself. We find no\nstandards, or if they are too vague or\nappli-\nabuse of discretion in this decision.\nsweeping. If the affidavits provide spe-\nthe\ncific information sufficient to place the\nB. Explanation of Disclosure Order\nin\ndocuments within the exemption catego-\n[8] The second argument raised by the\nthe\nry, if this information is not contradicted\nAgency on cross-appeal criticizes the court\nrea-\nin the record, and if there is no evidence\nbelow for failing to articulate a justifica-\neject-\nin the record of agency bad faith, then\ntion for its order that at least segments of a\n57-58\nsummary judgment is appropriate with-\nfew documents be disclosed to the Church.\nid.\nat\nout in camera review of the documents.\nIn ruling in appellant's favor, the court\nHayden, 608 F.2d at 1387 (footnotes omit-\nmerely remarked that the Agency's claims\nted).\nof exemption had been \"overly broad\" with\nEx-\nIf the affidavits do not satisfy this stan-\nrespect to some documents. Mem. op. at 6,\nterial\ndard, the trial judge may inspect the docu-\nJA at 118.\nre-\nments in camera. In deciding whether and\nThis court has previously observed that a\nupra.\nhow to conduct review in camera, the court\nmore informative statement of rationale by\nosure\nhas substantial discretion. See Hayden, 608\ntrial courts facilitates the appellate inquiry\nF.2d at 1384; Ray V. Turner, 587 F.2d 1187,\nin FOIA cases. See Schwartz V. Internal\nex-\n1195 (D.C.Cir.1978). In fact, in amending\nRevenue Service, 511 F.2d 1303, 1307 (D.C.\n846\n636 FEDERAL REPORTER, 2d SERIES\nCir.1975); Vaughn V. Rosen, 484 F.2d 820,\nCir.1978), the CIA maintains that if the\n825 (D.C.Cir.1973), cert. denied, 415 U.S.\ncourt below found the Agency's affidavita/\n977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974);\ninsufficient, it should have accepted the\nAckerly V. Ley, 420 F.2d 1336, 1341-42 (D.C.\npost-judgment offer of additional proof\nCir.1969). And this court has even remand-\nThe national security ramifications of re-\ned for a more detailed explanation from the\nvealing the information contained in the\ntrial court. See Ackerly, 420 F.2d at 1341-\ndocuments may not have been apparent.\n42; cf. Schwartz, 511 F.2d at 1307-08 (re-\nnotes the Agency, from inspecting the doeu-\nversing district court's denial of motion for\nments.\nclarification).\nIn Public Citizen Health Research Group,\nAlthough we agree that a more complete\nthis court did reverse a trial court's refusal\nindication of the district court's rationale\nto examine an in camera affidavit that ex-\nwould have been helpful here, we decline to\nplained why disclosure of the document at\nreverse on this ground. The cases cited\nissue would harm privacy interests. But\nabove emphasize the special importance of a\nthere the affidavit was submitted from the\nstatement of reasons to those requesting\noutset and not, as here, after in camera\ndocuments, who do not know the exact con-\ninspection and judgment.\ntent of the records and whose efforts to\nargue for disclosure are therefore ham-\nEven if an in camera affidavit would\npered. That need is less pressing where, as\nhave been helpful and appropriate here, the\nhere, those seeking a fuller justification\ncourt below did not abuse its discretion in\nfrom the district court are the ones with\ndenying the Agency's post-judgment offer\nof proof.¹ The interests of judicial econo-\ncustody over the documents and knowledge\nof their contents. And the CIA has not\nmy and finality militate against a court's\nalleged here any prejudice to its efforts on\ntolerating a piecemeal approach by a party.\nappeal from the failure of the court below\nThis court has accordingly directed that\nto say more than that inspection of the\nagencies not make new exemption claims to\nrecords did not corroborate the Agency's\na district court after the judge has ruled in\nassertions of exemption.\nthe other party's favor. See Grumman Air-\ncraft Engineering Corp. V. Renegotiation\nWe wish to reiterate, however, that the\nBd., 482 F.2d 710, 721-22 (D.C.Cir.1978) (up-\npreferable practice is a full explanation by\nholding denial of motion for rehearing),\nthe district court of both rulings of exemp-\nrev'd on other grounds, 421 U.S. 168, 95\ntion and orders of disclosure. Here, for\nS.Ct. 1491, 44 L.Ed.2d 57 (1975). Similarly,\nexample, the court below should have indi-\nan agency may not wait until appeal to\ncated why it found the documents unpro-\nraise additional claims of exemption or ad-\ntected by the exemptions claimed.\nditional rationales for the same claim. See\nC. Post-Judgment Offer of Proof\nRyan V. Department of Justice, 617 F.2d\n[9] Finally, the Agency argues that the\n781, 792 (D.C.Cir.1980); Jordan V. United\ncourt below erred in denying its Motion for\nStates Dep't of Justice, 591 F.2d 753, 779-\nPartial Relief from Judgment, which in-\n80 (D.C.Cir.1978) (en banc); Vaughn V. Ro-\ncluded an offer of an in camera affidavit\nsen, 523 F.2d 1136, 1143 (D.C.Cir.1975). In\nexplaining in greater detail the Agency's\nRyan, for example, the court warned of\ndetermination that the material was cover-\n\"[t]he danger of permitting the Govern-\ned by exemptions 1 and 3. Citing Public\nment to raise its FOIA exemption claims\nCitizen Health Research Group V. United\none at a time, at different stages of a\nStates Dep't of Labor, 591 F.2d 808 (D.C.\ndistrict court proceeding.\" 617 F.2d at 792.\n14. The Agency did not, for example, submit a\n15. This court has indicated that in camera affi-\nmotion for clarification, as had the appellant in\ndavits, though appropriate in some cases,\nSchwartz V. Internal Revenue Service, 511 F.2d\nshould be used with caution because they do\n1303 (D.C.Cir.1975).\nnot permit a response from the opposing party.\nSee Allen V. Central Intelligence Agency, 636\nF.2d at 1298 n.63 (D.C.Cir.1980).\nHOLY SPIRIT ASS'N, ETC. V. C.I.A.\n847\nCite as 636 F.2d 838 (1980)\nthe\nHere the Agency knew that the sufficien-\ncreated records transferred to the CIA and\nlavits\ncy of its affidavits was at issue-the\nthe CIA-generated documents sent to Con-\nI the\nChurch had questioned the government's\ngress, we hold that neither set of materials\nproof.\nclaims of exemption in its motion for sum-\ncontains congressional records immune\nof re-\nmary judgment. If the Agency felt that it\nfrom the FOIA under 5 U.S.C. § 551(1)(A).\na the\ncould not give a complete explanation on\nCongress obviously has the prerogative to\narent,\nthe record of its reasons for asserting ex-\nact to ensure the secrecy of its records and\ndocu-\nemptions 1 and 3, it should have considered\ntheir exemption from the FOIA. But ap-\nsubmitting an in camera affidavit at a\nplying the criteria first articulated by this\nGroup,\nmuch earlier point.\ncourt in Goland V. Central Intelligence\nefusal\nMoreover, despite the Agency's sugges-\nAgency, we detect nothing in either the\nat ex-\ntion to the contrary, this is not a case in\ncircumstances attending these documents'\nent at\nwhich the government's exemption argu-\ngeneration or the conditions under which\nBut\nments were not explored in depth below.\nthey were transferred between Congress\nm the\nThe court conducted a thorough in camera\nand the Agency that indicates that Con-\namera\ninspection of the documents, and it had as a\ngress intended to retain control over them.\nguide the Agency's Document Disposition\nAccordingly, we reverse on this point, but\nwould\nIndex, which explained in general terms the\nremand for consideration of the Agency's\nthe\nAgency's national security concerns and\nother exemption claims never ruled on be-\nin\njustifications for its exemption claims. 16\nlow.\noffer\nAn in camera affidavit may have provided\nWe affirm all other portions of the dis-\necono-\nmore details, but the contours of the CIA's\ntrict court's opinion and reject both the\ncourt's\narguments were evident in the Index. And\nChurch's arguments with respect to the def-\nparty.\nwe have detected no indication that these\ninition of \"intelligence source\" and the\nthat\narguments were not understood or fully\nCIA's challenges on cross-appeal to the\nto\nconsidered by the court below. We there-\ncourt's disclosure order.\nin\nfore find no abuse of discretion in the deni-\nReversed and remanded.\nAir-\nal of the Agency's Motion for Partial Relief\ntiation\nfrom Judgment and refusal of an in camera\n(up-\naffidavit.\"\naring).\nKEY NUMBER SYSTEM\n95\nIV. CONCLUSION\nto\nBecause we find that Congress failed to\nad-\nexercise its control over both the Congress-\nor\nSee\n16. Typically, when an agency's affidavits are\npeal. It only alleges that the court paid insuffi-\nF.2d\nan insufficient basis for summary judgment, a\ncient attention to its affidavits and failed to\nUnited\ntrial court will inspect the documents in cam-\nunderstand the national security implications\n779-\nera or accept in camera affidavits. See Hayden\nof disclosure, speculations that are unsup-\nV. National Security Agency, 608 F.2d 1381,\nported by the record.\nV.\nRo-\n1384 (D.C.Cir. 1979), cert. denied, 446 U.S. 937,\nWe reject the Church's contention that the\nIn\n100 S.Ct. 2156, 64 L.Ed.2d 790 (1980).\ndistrict court's imposition of a stay was an\nof\n17. Moreover, the court below granted the CIA\nabuse of discretion. See Providence Journal\novern-\na stay of its disclosure order pending appeal,\nCo. V. Federal Bureau of Investigation, 595 F.2d\nclaims\nand the Agency has not been able to elaborate\n889 (1st Cir. 1979).\nof\na\non the need for an in camera affidavit on ap-\n792.\naffi-\ncases,\ndo\nparty.\n636\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n339\nCite as 607 F.2d 339 (1978)\nficed to demonstrate that the search for\nSusan D. GOLAND and Patricia B.\nresponsive documents was complete; ac-\nSkidmore, Appellants,\ncordingly, the court's grant of summary\nV.\njudgment without discovery was within its\ndiscretion.\nCENTRAL INTELLIGENCE AGENCY\net al.\nAffirmed.\nNo. 76-1800.\nBazelon, Circuit Judge, filed a dissent-\ning opinion and also dissented, with opinion,\nUnited States Court of Appeals,\nfrom the denial of rehearing.\nDistrict of Columbia Circuit.\nArgued 5 Oct., 1977.\n1. Records 14\nDecided 23 May, 1978.\nTranscript of hearings conducted by\nRehearing Denied 28 March, 1979.\nthe House Committee on Expenditures in\nthe Executive Department was a \"congres-\nIn suit for an injunction directing the\nsional document\" and not an \"agency rec-\nCentral Intelligence Agency to comply with\nord\" within the meaning of the Freedom of\nplaintiffs' request for documents relating to\nInformation Act, where the transcript was\nthe legislative history of the CIA's organic\nreleased to the Central Intelligence Agency\nstatutes, the United States District Court,\nfor limited purposes as a reference docu-\nfor the District of Columbia, D.C.Civil 76-\nment only and remained within the control\n0166, George L. Hart, Jr., J., granted sum-\nof Congress. 5 U.S.C.A. §§ 551(1)(A), 552.\nmary judgment in favor of the CIA, and\n2. Records 14\nplaintiffs appealed. The Court of Appeals,\nWilkey, Circuit Judge, held that: (1) tran-\nAs-regards the Freedom of Information\nscript of hearings conducted by the House\nAct which requires that an agency make\nCommittee on Expenditures in the Execu-\nagency records available to the public upon\ntive Department was a \"congressional docu-\nreasonable request, an agency's possession\nment\" and not an \"agency record\" within\nof a document does not per se dictate that\nthe meaning of the Freedom of Information\ndocument's status as an \"agency record.\" 5\nAct, where the transcript was released to\nU.S.C.A. § 552.\nthe CIA for limited purposes as a reference\n3. Records 14\ndocument only and remained within the\nAn agency's possession of a document,\ncontrol of Congress; (2) deleted portions of\nstanding alone, no more dictates, for pur-\ncertain statement given by the Central In-\nposes of the Freedom of Information Act,\ntelligence Director before the House Armed\nServices Committee on 8 April 1948 were\nthat it is an \"agency record\" than the con-\ngressional origins of a document, standing\nproperly withheld by the CIA under the\nFreedom of Information Act's third exemp-\nalone, dictate that it is not; whether a\ntion, relating to matters \"specifically ex-\ncongressionally generated document has be-\ncome an agency record, rather, depends on\nempted from disclosure by statute,\" since\nwhether under all the facts of the case the\nthe nondisclosure provisions of the National\nSecurity Act and the Central Intelligence\ndocument has passed from the control of\nAgency Act remain qualifying statutes un-\nCongress and become property subject to\nder amended exemption 3, and since the\nthe free disposition of the agency with\nCIA showed by affidavit that release of the\nwhich the document resides. 5 U.S.C.A.\nstatement in its entirety would reveal \"in-\n§ 552.\ntelligence sources and methods,\" and (3)\n4. Records\n14\nplaintiffs made no showing of CIA bad\nIn ascertaining whether a record in the\nfaith sufficient to impugn information coor-\npossession of an agency is nonetheless a\ndinator's affidavit, which on its face suf-\ncongressional document exempt from disclo-\n340\n607 FEDERAL REPORTER, 2d SERIES\nsure under the Freedom of Information\n8. Records\n14\nAct, a court will accord due weight to these\nAs regards the Freedom of Information\nfactors: (1) Congress' clear intent to ex-\nAct, Congress has instructed the courts to\nempt congressional documents from disclo-\naccord \"substantial weight\" to agency affi-\nsure under FOIA; (2) Congress' clear pre-\ndavits in national security cases, and these\nrogative to prevent disclosure of its own\naffidavits are equally trustworthy when\nconfidential materials; and (3) the danger\nthey aver that all documents have been\nof inhibiting the legislative and judicial\nproduced or are unidentifiable as when they\nbranches from making their records availa-\naver that identified documents are exempt.\nble to the executive branch. 5 U.S.C.A.\n5 U.S.C.A. $ 552.\n§ 552.\n9. Federal Civil Procedure\n2538\n5. Records\n14\nWhile an agency's affidavits, on\na\nWhen Congress, which has broad pow-\nFreedom of Information Act motion for\ners to keep documents secret, transfers se-\nsummary judgment, must be relatively de-\ncret documents to an agency for a limited\ntailed and nonconclusory and must be sub-\npurpose and on condition of secrecy, it does\nmitted in good faith, the district court has\nnot thereby waive its own prerogatives of\ndiscretion, if these requirements are met, to\nconfidentiality and resign itself to the Free-\nforego discovery and award summary judg-\ndom of Information Act exemptions which\nment on the basis of affidavits. 5 U.S.C.A.\nbind the agency and not it. 5 U.S.C.A.\n§ 552.\n§ 552.\n10. Records\n14\n6. Records\n14\nAs regards a request for records under\nDeleted portions of certain statement\nthe Freedom of Information Act, an agency\ngiven by the Central Intelligence Director\nis not required to reorganize its files in\nbefore the House Armed Services Commit-\nresponse to a plaintiff's request in the form\ntee on 8 April 1948 were properly withheld\nin which it was made, and if an agency has\nby the Central Intelligence Agency under\nnot previously segregated the requested\nthe Freedom of Information Act's third ex-\nclass of records, production may be required\nemption, relating to matters \"specifically\nonly where the agency can identify that\nexempted from disclosure by statute,\" since\nmaterial with reasonable effort. 5 U.S.C.A.\nthe nondisclosure provisions of the National\n§ 552.\nSecurity Act and the Central Intelligence\nAgency Act remain qualifying statutes un-\n11. Federal Civil Procedure\n2539\nder amended Exemption 3, and since the\nIn suit for an injunction directing the\nCIA showed by affidavit that release of the\nCentral Intelligence Agency to comply with\nstatement in its entirety would reveal \"in-\nplaintiffs' request for documents relating to\ntelligence sources and methods.\" 5 U.S.\nthe legislative history of the CIA's organic\nC.A. $ 552(b)(3); National Security Act of\nstatutes, plaintiffs made no showing of CIA\n1947, § 102(d)(3), 50 U.S.C.A. § 403(d)(3);\nbad faith sufficient to impugn information\nCentral Intelligence Agency Act of 1949,\ncoordinator's affidavit, which on Its face\n§ 7, 50 U.S.C.A. § 403g.\nsufficed to demonstrate that the search for\n7. Federal Civil Procedure\n2544\nresponsive documents was complete; ac-\ncordingly, the court's grant of summary\nIn order to prevail on a Freedom of\njudgment without discovery was within its\nInformation Act motion for summary judg-\ndiscretion.\nment, the defending agency must prove\nthat each document that falls within the\nclass requested either has been produced, is\nOn Petition for Rehearing\nunidentifiable, or is wholly exempt from the\n12. Records\n65\nAct's inspection requirements. 5 U.S.C.A.\nIn suit for an injunction directing the\n§ 552.\nCentral Intelligence Agency to comply with\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n341\nCite as 607 F.2d 339 (1978)\nplaintiffs' request for documents relating to\n19. Federal Courts\n708\nthe legislative history of the CIA's organic\nFactfinding and creation of a record\nstatutes, the mere fact that, subsequent to\nare the functions of the district court;\nthe issuance of the Court of Appeals' opin-\ntherefore, consideration of newly discovered\nion affirming the district court's grant of\nevidence is a matter for the district court.\nsummary judgment for the CIA, additional\ndocuments were discovered did not, as a\n20. Federal Civil Procedure\n2655\nsubstantive matter, impugn the accuracy of\nProper procedure for dealing with new-\nCIA information coordinator's sworn affi-\nly discovered evidence is for the party. to\ndavits, since the issue was not whether any\nmove for relief from the judgment in the\nfurther documents might conceivably exist\ndistrict court under Rule 60(b). Fed.Rules\nbut whether the CIA's search for responsive\nCiv.Proc. Rule 60(b), 28 U.S.C.A.\ndocuments was adequate. 5 U.S.C.A. $ 552.\n21. Federal Courts\n931\n13. Records\n62\nCourt of Appeals may, in appropriate\nAn agency, in response to a Freedom of\ncases, have ample revisory power under\nInformation Act request, is required only to\nstatute providing that any\nmake reasonable efforts to find responsive\ncourt of appellate jurisdiction may affirm,\nmaterials; it is not required to reorganize\nmodify, vacate, set aside or reverse any\nits filing system. 5 U.S.C.A. § 552.\njudgment, decree or order of a court lawful-\n14. Federal Civil Procedure\n2655\nly brought before it for review,\" but the\nOccasions when newly discovered evi-\ninstant suit, in which plaintiffs sought to\ndence or changed circumstances will war-\ncompel the Central Intelligence Agency to\nrant setting aside a final judgment are lim-\ncomply with their request for documents\nited procedurally as well as substantively.\nrelating to the legislative history of the\nCIA's organic statutes, would not be a prop-\n15. Federal Civil Procedure\n2641\ner occasion for such extraordinary relief,\nFederal Courts\n541\ndespite the CIA's postjudgment revelation\nA final district court judgment may be\nof various germane documents, since the\naltered on direct review only through two\nCIA's original failure to uncover said docu-\nprocedures: by appeal, and by a motion in\nments was fully understandable and not\ndistrict court for relief from the judgment\ninconsistent with the district court's finding\nunder Federal Rule 60(b). Fed.Rules Civ.\nthat the search was thorough. 28 U.S.C.A.\nProc. Rule 60(b), 28 U.S.C.A.\n§ 2106.\n16. Federal Courts\n707\n22. Federal Civil Procedure\n2643\nAppellate review is ordinarily unaffect-\nRule 60(b) does not extinguish the his-\ned by matters not contained in the record.\ntorical authority of equity courts to reform\njudgments in appropriate cases. Fed.Rules\n17. Federal Courts\n744\nCiv.Proc. Rule 60(b), 28 U.S.C.A.\nAn appellate opinion is based on the\nrecord before it, and hence cannot be set\n23. Federal Civil Procedure\n2658\naside on the basis of newly discovered facts\nOne-year limit on certain Rule 60(b)\noutside the record.\nmotions is not applicable to an independent\naction to relieve a party from a judgment,\n18. Federal Courts\n776\norder or proceeding, leaving such indepen-\nAn appellate court has no fact-finding\ndent action, apart from collateral attack, as\nfunction; it cannot receive new evidence\nthe only manner of obtaining relief from a\nfrom the parties, determine where the truth\njudgment in those cases where a 60(b) mo-\ndetermination.and base its decision on that\ntion has become time barred. Fed.Rules\nCiv.Proc. Rule 60(b), 28 U.S.C.A.\n342\n607 FEDERAL REPORTER, 2d SERIES\n24. Records 54\nof Justice, Washington, D. C., were on\nNeither the discovery of additional doc-\nfor appellees.\numents, nor the Central Intelligence Agen-\nThomas C. Martin, Dept. of Justic\ncy's delayed disclosure of this discovery, nor\nWashington, D. C., entered an appearance\nCIA's ultimate release of the documents in\nfor respondent.\nany way undermined the Court of Appeals'\nprior holdings that the congressional hear-\nBefore BAZELON, TAMM and WIL.\ning transcript was not an \"agency record\"\nKEY, Circuit Judges.\nbut a congressional document to which the\nFreedom of Information Act did not apply,\nOpinion for the Court filed by WILKEY\nCircuit Judge.\nthat the deleted portions of the Hillenkoet-\nter Statement could properly be withheld\nOUTLINE OF OPINION\npursuant to FOIA Exemption 3, and that no\nI. FACTUAL BACKGROUND\nlive and genuine controversy remained on\nthe definition of \"agency records\" issue. 5\nII. COURSE OF THE LITIGATION\nU.S.C.A. § 552; National Security Act of\nIII. ANALYSIS\n1947, § 102(d)(3), 50 U.S.C.A. § 403(d)(3);\nA. The Hearing Transcript\nCentral Intelligence Agency Act of 1949, §\nB. The Hillenkoetter Statement\n7, 50 U.S.C.A. § 403g.\nC. The Thoroughness of the CIA's\nSearch for Responsive Docu-\n25. Federal Courts - 945\nments\nWhile the Court of Appeals, in its prior\nD. The CIA's Definition of Agency\ndecision, declined to award attorneys' fees\n\"Records.\"\nto plaintiffs, holding that plaintiffs had not\nE. Attorneys' Fees\n\"substantially prevailed\" even though the\nCentral Intelligence Agency had released\nWILKEY, Circuit Judge:\ncertain statements after plaintiffs com-\nThis case arises under the Freedom of\nmenced suit to compel the CIA to comply\nInformation Act (FOIA).¹ Plaintiffs Go.\nwith plaintiffs' requests for documents re-\nland and Skidmore requested documents\nlating to the legislative history of the CIA's\nfrom the Gentral Intelligence Agency (CIA)\norganic statutes, the subsequent release by\nrelating to the legislative history of the\nthe CIA of additional documents discovered\nAgency's organic statutes. In this suit they\npostjudgment necessitated a remand for re-\nchallenge the thoroughness of the CIA's\nconsideration of the attorney's fees issue.\nsearch for responsive documents and the\nAgency's refusal to give them certain ad-\nJames H. Wallace, Jr., Washington, D. C.,\nmittedly responsive material it does possess.\nwith whom Thomas C. Arthur and Mark H.\nThe district court granted summary judg-\nLynch, Washington, D. C., were on brief,\nment in favor of the CIA. We affirm.\nAlan B. Morrison and Larry P. Ellsworth,\nWashington D. C., were on the motion to\nI. FACTUAL BACKGROUND\nvacate and on the petition for rehearing,\nThe chronology of events must be elabo-\nfor appellants.\nrated in some detail. On 2 May 1975 Sara\nJohn F. Cordes, Atty., Dept. of Justice,\nHoltz filed an FOIA request with the CIA,\nWashington, D. C., with whom Earl J. Sil-\nseeking access to \"all records concerning\nbert, U. S. Atty., Rex E. Lee, Asst. Atty.\nthe legislative history\" of the National Se-\nGen., and Leonard Schaitman, Atty., Dept.\ncurity Act of 1947,3 the CIA Act of 1949,\"\n1. 5 U.S.C. § 552 (1976).\n4. Act of 20 June 1949, ch. 227, §§ 1-10, 63 Stat.\n208 (presently codified at 50 U.S.C. §§ 403a-\n2. Holtz is not a party to this suit.\n403j (1970)).\n3. Act of 26 July 1947, ch. 343, § 102, 61 Stat.\n497 (presently codified at 50 U.S.C. § 403\n(1970)).\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n343\nCite as 607 F.2d 339 (1978)\nand two bills introduced into Congress in\nwere no further communications between\nxief,\n1948 providing for the administration of the\nHoltz and the CIA.\nAgency.\" Specifically, Holtz requested ac-\nOn 20 October 1975 plaintiffs Goland and\nstice,\nõess to \"all reports of the Committees of the\nSkidmore notified the CIA that they, like\nrance\nHouse and Senate and the Conference Com-\nHoltz, were \"investigating the authority,\nmittee which reported on the bills, and any\norganization and administration\" of the\nWIL-\nhearings which may have been held on\nAgency, and requested \"the documents re-\nthese bills or related to the subject of the\nauthority, organization and administration\"\nquested by Ms. Holtz' letters.\" Treating\nthe CIA's failure to respond within ten days\nKEY,\nof the CLA.6\nas a denial of their request,\" plaintiffs on 20\nOn 14 May the CIA responded to Holtz'\nNovember 1975 appealed that denial. On\nLetter, advising her that the documents she\n26 November 1975 the CIA offered to send\ntought were congressional materials which\nplaintiffs copies of five previously published\nwould be available in the Library of Con-\nhearings and reports, even though these\ngress or the Government Printing Office.\ndocuments were \"generally available in the\nOn 20 May 1975 Holtz wrote the Agency a\nLibrary of Congress and various depository\nsecond letter, stating her belief that hear-\nIngs had been held on the bills she cited for\nlibraries.\" 10 With respect to the Hearing\nwhich no transcripts were available in the\nTranscript, however, the CIA reiterated its\nLibrary of Congress, and requesting access\nposition that the Transcript was a \"legisla-\ntive document under the control of the\nto records of these hearings and to \"any\n-House, Senate or Conference Reports, be-\nHouse of Representatives\" which was \"clas-\nsides those available in public libraries, that\nsified 'Secret\" and to which FOIA did not\nmore fully explain the basis for the Com-\napply.¹¹\nmittees' actions on these bills.\"\nOn 16 December 1975 Goland and Skid-\nThe Agency responded on 23 June 1975,\nmore wrote the CIA to \"elaborate on the\nof\ninforming Holtz that a search of its records\nbasis of [their] appeal,\" asserting that the\nGo-\nInd revealed that it possessed one document\nAgency's letter of 26 November failed to\nments\nrelating to the legislative history of the\nmake clear whether the Transcript and the\n(CIA)\nCLA's organic statutes which was not pub-\nfive published documents accounted for all\nthe\nScly available, namely, a stenographic tran-\nthe material they had requested. 12 In addi-\nthey\nscript of Hearings held before the House\ntion, plaintiffs expanded the scope of their\nCIA's\nCommittee on Expenditures in the Execu-\nrequest to embrace not only the reports and\nthe\nlive Departments on 27 June 1947 (herein-\nhearings they had sought originally, but\nin\nad-\nafter \"Hearing Transcript\"). The Agency\nalso any \"materials which may have been\nossess.\nstated, however, that the Hearing Tran-\nthe basis for testimony at hearings\" or \"ma-\njudg-\nscript had been classified \"Secret\" by Con-\nterials used by or submitted by the CIA or\nffirm.\ngress and could be declassified only by that\nother Executive Branch sources which are\nbody; it suggested that Holtz request de-\nincluded in [unpublished] reports\" on the\nclassification and release of the document\ncited bills.\" When the CIA failed to re-\nelabo-\nfrom the House of Representatives. There\nspond to this supplemental appeal within 20\nSara\n5. S. 2688, 80th Cong., 2d Sess. (1948); H.R.\nCIA.\nistrative remedies if the agency fails to comply\n5871, 80th Cong., 2d Sess. (1948).\nwith this time limit.\nrning\nSe-\nL Joint Appendix (J.A.) 12.\n10. J.A. 22. These five documents (65 pages in\n1949,4\n2 ,S.A. 14-15.\nall) were sent to plaintiffs on 12 January 1976.\nJ.A. 78.\nStat.\na J.A. 18.\n403a-\n11. J.A. 22.\na Under 5 U.S.C. § 552(a)(6)(A)(i) (1976), an\nagency must to an FOIA request with-\n12. J.A. 23-24.\nrequester is deemed to have exhausted admin-\nrequester is deemed , the ten working deemed under $ 552(a)(6)(C), a\n13. J.A. 24, 25.\n344\n607 FEDERAL REPORTER, 2d SERIES\nworking days,14 plaintiffs filed suit on 28 the deleted portions of the Hillenkoetter\nJanuary 1976.\nStatement were properly withheld under\nOn 10 March 1976 the CIA notified plain-\nFOIA Exemption 3, relating to matters\ntiffs' counsel that it had identified two ad-\n\"specifically exempted from disclosure by\nditional documents responsive to plaintiffs'\nstatute;\" 19 that both the Transcript and the\nFOIA request which \"had not previously\ndeleted portions of the Hillenkoetter State-\nbeen located.\" 15 The first document was\nment were properly withheld under FOI\n1\nentitled \"Statement of Lt. Gen. Hoyt S.\nExemption 1, relating to matters \"specifi-\nVandenberg, Director of Central Intelli-\ncally authorized under criteria established\n-\ngence,\" delivered before the Senate Armed\nby an Executive Order to be kept secret in.\n(\nServices Committee on 29 April 1947. This\nthe interest of national defense or foreign\n,\ndocument was released to plaintiffs in full.\npolicy;\" 20 that the CIA's search had been\nThe second document was entitled \"State-\ncomplete and there existed no other respon-\n9\nment of the Director of Central Intelligence\nsive documents; and that plaintiffs lacked\no\n[Hillenkoetter] Before the House Armed\nstanding to challenge the CIA's definition\n2\nServices Committee [on] 8 April 1948\"\nof \"agency records\" inasmuch as the Agen-\n(hereinafter \"Hillenkoetter Statement\").\ncy had not relied on that definition in pro-\n2\nThis document was released to plaintiffs\ncessing their FOIA request. Plaintiffs re-\nwith certain portions (about 20% of the\nsponded to the motion principally on the\ntotal) deleted; the Agency explained that\ngrounds that discovery was needed to re-\nthe deleted material was exempt from dis-\nsolve disputed issues of fact.\n25\nclosure under FOIA.\nJudge Hart granted the CIA's motion for\n26\nsummary judgment on 26 May 1976.21 He\nII. COURSE OF THE LITIGATION\nfound that the Hearing Transcript was a\n27\nThe complaint sought an injunction di-\ncongressional document outside the ambit\nrecting the CIA to make available for copy-\nof FOIA, that the deleted portions of the\ning all \"records requested in plaintiffs'\nHillenkoetter Statement were properly\nletter\" of 20 October 1975,¹⁰ a\nwithheld under FOIA Exemption 1, and\n-\ndeclaratory judgment holding the CIA's\nthat no further discovery was justified since\n-\nallegedly restrictive definition of \"agency\nthe CIA \"made a full search in good\n28.\nrecords\" invalid, and an award of attor-\nfaith.\" Judge Hart made no findings\nneys' fees. On 10 March 1976 plaintiffs filed\nabout plaintiffs' standing to challenge the\n29.\ninterrogatories, a request for production of\nCIA's definition of agency records or about\n30.\ndocuments, and a notice of deposition to the\ntheir request for attorneys' fees. We con-\n4\nCIA. Rather than submit to discovery, the\nsider these issues in turn.\nV\nCIA on 5 April 1976 filed a motion for\no\n2\nsummary judgment based on affidavits.\nIII. ANALYSIS\nP\nThe Agency contended that the Hearing\nV\nTranscript was not an \"agency record\" but\nA. The Hearing Transcript.\nt]\nrather a congressional document not subject\n[1] The FOIA requires that an agency\nt)\n'r\nto FOIA; 18 that both the Transcript and\nmake \"agency records\" available to the\nm\nSt\n14. See 5 U.S.C. $ 552(a)(6)(A)(ii) & (C) (1976).\n19. 5 U.S.C. § 552(b)(3) (1976).\npr\npl\n15. J.A. 129.\n20. 5 U.S.C. § 552(b)(1) (1976). These docu-\ntr\nments were classified \"Secret\" under Executive\n16. J.A. 9.\nag\nOrder No. 11652, 3 C.F.R. 678 (1971-75 Compl-\nC\nlation).\n17. 32 C.F.R. § 1900.3(g) (1976). The definition\n\"I\nhas recently been amended. See 42 Fed.Reg.\npo\n24,049 (12 May 1977) (codified at 32 C.F.R.\n21. Judge Hart's decision, rendered from the\nG\n§ 1900.3(g) (1977)).\nbench, is printed at J.A. 187-90.\nSu\ngr\n18. Congress is not an \"agency\" under FOIA.\n22.\nJ.A.\n190.\nas\nSee 5 U.S.C. § 551(1)(A) (1976).\nva\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n345\nCite as 607 F.2d 339 (1978)\npublic upon reasonable request.2 The Act\nof this case.\" The district court found that\nkoetter\nunder\n(does not define \"records\" or \"agency rec-\nthe Hearing Transcript was \"released to the\nmatters\nords.\" Plaintiffs argue that since the\nCIA for limited purposes as a reference\nby\nCIA is an \"agency\" its possession of the\ndocument only\" and that it \"remain[ed]\nand\nthe\nHearing Transcript, without more, renders\nwithin the control of Congress; 28 the\nState-\nthat document an \"agency record\" subject\ncourt concluded that the Transcript was in\nto disclosure absent specific exemption.2\nFOIA\nconsequence a \"Congressional document,\"\nThe CIA argues that possession is not\n\"specifi-\nand not an \"agency record\" within the\nenough; it points out that \"agency,\" as\nablished\nmeaning of FOIA. We agree.\ndefined by the Administrative Procedure\nin\nAct, \"does not include (A) the Congress\n[2] At the outset, we reject plaintiffs'\nforeign\nand that the Hearing Tran-\nargument that an agency's possession of a\nbeen\nscript, regardless of whether it is a \"rec-\ndocument per se dictates that document's\nrespon-\nord,\" is not an \"agency record\" on the facts\nstatus as an \"agency record.\" 30 We base\nlacked\nefinition\n23. 5 U.S.C. $ 552(a)(3) & (4)(B) (1976).\ntains information regarding \"basic elements of\nAgen-\n[the CIA's] intelligence methodology\" and de-\n24. See U. S. Dept. of Justice, Attorney Gener-\ntails of the CIA's \"structure and disposition of\nin\npro-\nal's Memorandum on the Public Information\nfunctions.\" Affidavit of CIA Legislative Coun-\ntiffs\nre-\nSection of the Administrative Procedure Act 23\nsel George L. Cary, J.A. 80 [hereinafter \"Cary\non\nthe\n(1967) [hereïnafter Attorney General's FOIA\nAffidavit\"]. The sole result of the Hearing\nMemorandum].\nTranscript's being deemed an \"agency record\"\nto\nre-\nunder s 3301 by virtue of its receipt by the CIA\n25. Brief of Appellants at 40; J.A. 24#\nis that the Transcript could not thereafter be\nfor\n26. 5 U.S.C. $ 551(1)(A) (1976).\ndestroyed except in conformity with the proce-\ndure Congress prescribed-a result plainly har-\n76.11\nHe\n27. The CIA also argues that if the Hearing\nmonious with Congress' objectives. See 44\nwas\na\nTranscript were an agency record for purposes\nU.S.C. § 3314 (1970). Congress' objectives in\nhe\nambit\nof 552(a)(3), it would be exempt from disclo-\nthe FOIA, of course, were rather different. In\nof\nthe\nsure under FOIA Exemptions 1 and 3. See p.\nthe interests of secrecy, Congress exempted\nitself from the Act's disclosure requirements;\nproperly\n1 supra. Since we hold that the Hearing Tran-\nof - U.S.App.D.C., p. 344 of 607 F.2d\nyet the result of the Hearing Transcript's being\n1,\nand\nscript is a Congressional document, we do not\ndeemed an \"agency record\" under § 552(a)(3)\nsince\nconsider these arguments.\nby virtue of its receipt by the CIA is that the\nTranscript's release could be required, regard-\nin\ngood\n28. J.A. 189.\nless of Congress' wishes, unless the CIA could\nfindings\nprove a specific exemption. Given this differ-\nthe\n29. Id.\nence in result, we doubt Congress would agree\nlenge\nor\nabout\nthat an \"agency record\" under 44 U.S.C. & 3301\nx In support of this argument, plaintiffs cite\nis an \"agency record\" under 5 U.S.C.\nWe\ncon-\n44 U.S.C.A. § 3301 (West Supp.1977), an earlier\n& 552(a)(3). Indeed, the two tities define\nversion of which is quoted in the Attorney\n\"agency\" differently. Compare 5 U.S.C.\nGeneral's FOIA Memorandum, supra note 24 at\ns 551(1)(A) & (B) (1976) (\"agency\" excludes\n23. Section 3301 defines \"records\" for pur-\nCongress and the federal courts) with 44 U.S.\nposes of the management, disposal, and archi-\nC.A. & 2901(13) (West Supp. cross-refer-\nval preservation of Government documents by\nring to 40 U.S.C. s 472(b) (1970) (\"agency\"\nthe Administrator of General Services; it states\nincludes not only executive agencies, but also\nagency\nthat \"[a]s used in [chapter 33 of 44 U.S.C.].\n\"any establishment in the legislative or judicial\nthe\n'records' includes all\npapers\nbranch,\" with exceptions). Congress, in any\nto\nmade or received by an agency of the United\nevent, has had ample opportunities to make the\nACTS\nStates Government\nappropriate for\n§ 3301 definition of \"records\" applicable in\npreservation by that agency\n(em-\n§ 552(a)(3) of FOIA, but has never done so. Cf.\nthese\ndocu-\nphasis added). This definition is hardly con-\n44 U.S.C.A. § 2906(a)(3) (West Supp.1977)\nExecutive\ntrolling here. In enacting legislation on man-\n(stating that under certain circumstances \"rec-\nCompt-\nagement and disposal of Government records,\nords\" under $ 3301 shall be deemed records for\nCongress was concerned with preserving an\npurposes of 5 U.S.C. § 552a). One recent com-\n\"[a]ccurate and complete documentation of the\nmentator has stated that $ 3301, although it\npolicies and transactions of the Federal\nthe\ncontains the \"only statutory definition of 'rec-\nfrom\nGovernment.\" 44 U.S.C.A. § 2902(1) (West\nord,'\" is \"an inappropriate answer to the defi-\nSupp.1977). With this objective in mind, Con-\nnitional issue.\" J.T. O'Reilly, Federal Informa-\ngress might well regard the Hearing Transcript\ntion Disclosure, П 5.03 n.l (1977).\nas a \"record\nappropriate for preser-\nPlaintiffs point out that the $ 3301 definition\nEvation\" by the CIA, since the Transcript con-\nof records was quoted in the Attorney Gener-\n346\n607 FEDERAL REPORTER, 2d SERIES\nour conclusion both on precedent and on\nthority to keep its records secret, authority\ndocument,\npolicy. The precedent is the Tenth Circuit's\nrooted in the Constitution,\" longstanding\nnot. Whe\nopinion in Cook V. Willingham,\" the only\npractice,\" and current congressional rules.\ndocument\ndecision cited to us or discovered by our\nYet Congress exercises oversight authority\nrather, de\nown research that is squarely on point. In\nover the various federal agencies, and thus\nfacts of th\nCook, a prisoner sought a copy of his pre-\nhas an undoubted interest in exchanging\nfrom the\nsentence investigation report under FOIA.\ndocuments with those agencies to facilitate\nproperty s\nAlthough the document was physically in\ntheir proper functioning in accordance with\nthe agency\nthe possession of the warden of a United\nCongress' originating intent. If plaintiffs'\nsides.\nStates penitentiary, the Tenth Circuit held\nargument were accepted, Congress would\nThe doc\nthe place of possession not controlling.\nbe forced either to surrender its constity\nstatic repr\nNoting that FOIA \"does not apply to 'the\ntional prerogative of maintaining secrecy,\nscript of a\ncourts of the United States,' 32 it conclud-\nfor\nor to suffer an impairment of its oversight\nCommittee\ned that the presentence report, \"made for\nrole. We decline to confront Congress with\ntive Depar\ncc\nthe use of the sentencing court,\" thereafter\nthis dilemma absent a more convincing\n\"H.R. 231\nT\n\"remains in the exclusive control of that\nshowing of self-abnegating congressional\nForces.\" I\ncourt despite any joint utility it may even-\nintent. It may be assumed that plaintiffs\necutive Ses\nare\ntually serve.\" 33 In consequence, the judi-\ncould not easily win release of the Hearing\nness, the 0\ncial document was \"not an agency report\nTranscript from the House of Represents\nand typist\nand [was] therefore not available to the\ntives; we will not permit them to do indi-\ntains discus\npublic\" under FOIA. Since the FOIA's\nrectly what they cannot do directly because\ngence met\nexemptions for Congress and the federal\nof the fortuity of the Transcript's location\nand of fri\ncourts are in pari materia,³⁵ Cook is firm\n[3] For reasons both of precedent and\nwell as de\nsupport for the conclusion that the Hearing\npolicy, then, we believe that plaintiffs' lit.\"\nstructure\nTranscript, a congressional document, is not\nmus test must be rejected. An agency's\nWhen rece\n\"an agency record\" here.\npossession of a document, standing alone,\nbore the t\nThis conclusion likewise finds firm sup-\nno more dictates that it is an \"agency real\nits interior\nport in policy. Congress has undoubted au-\nord\" than the congressional origins of a\npears to h\nthe Transc\nal's FOIA Memorandum supra note 24 at 23.\nthe Court for which it was made, and is there-\nWe do not see how this helps plaintiffs' case.\nfore not capable of release under FOIA,\" citing\n40. Cary A\nThe Attorney General noted that the FOIA did\nCook).\nnot define \"records,\" then quoted the only\n41. J.A. 80\navailable statutory definition of the term for\n35. See 5 U.S.C. § 551(1)(A) & (B) (1976).\nand dispo\nwhat it was worth. He would have been re-\nTranscript\nmiss in not doing so. Yet his citation of the\n36. U.S.Const. art. 1, $ 5: \"Each House shall\nclosure of\ndefinition does not give it any greater extrapo-\nkeep a Journal of its Proceedings, and from\nrelations\nlative force than it inherently possesses. The\nthe CIA it\ntime to time publish the same, excepting such 1\nAttorney General surely did not focus on the\nthe Trans\nParts as may in their Judgment require Secrecy\nwords \"or received by,\" which plaintiffs itali-\nOrder 116\ncize and which are relevant to our case. In-\nconsider V\ndeed, the Memorandum elsewhere suggests\nSee note\n37. See Nixon V. Sirica, 159 U.S.App.D.C. 58,\nthat an agency's possession of a document does\n130-31, 487 F.2d 700, 772-73 (1973) (Wilkey,\nnot per se render the document an \"agency\n42. Cary A\nrecord\" which the possessing agency must re-\nJ., dissenting).\n43. Id. at\nlease. See note 46 infra.\n38. E. 8., H.R. Rule XI(2)(k)(7), reprinted in H.R.\n31. 400 F.2d 885 (10th Cir. 1968) (per curiam),\n44. Cf. S.F\nDoc. No. 416, 93d Cong., 2 Sess. 427 (1975):\nfollowed in United States V. Dingle, 546 F.2d\nAnnual R\n\"No evidence or testimony taken in executive\n1378, 1381 (10th Cir. 1976).\nof the Co\nsession may be released or used in public ses-\nDepartme\n32. 400 F.2d at 885, citing 5 U.S.C. § 551(1)(B)\nsions without the consent of the committee.\"\nwere\n(1976).\ntional ser\n39. See Letter from Deputy Att'y Gen. Harold R\nwas dete\n33. Id\nTyler, Jr. to Hon. Belia S. Abzug, 19 Feb. 1976,\ndetriment\n34. Id. at 886. See United Broadcasting Co., 58\nquoted in J.A. 60 (Justice Dept. declined to\nF.C.C.2d 1243, 1245 (1975) (FCC withheld pro-\nrelease confidential House report lest \"commu-\"\n45. Plaint\nbationary report because \"probationary report,\nnications and consultations between coequal\ncurrent I\nlike a presentencing report, properly belongs to\nbranches\" of government be stifled).\ngovernin\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n347\nCite as 607 F.2d 339 (1978)\ndocument, standing alone, dictate that it is\nten mark \"Secret\" appears again on the\nity\nnot. Whether a congressionally generated\nfirst page of the text of the Transcript.\n38\ndocument has become an agency record,\nThe CIA retains a copy of the Transcript\nity\nFrather, depends on whether under all the\nfor internal reference purposes only, to be\nfacts of the case the document has passed\nused in conjunction with legislation con-\nus\ning\nfrom the control of Congress and become\ncerning the Agency and its operations.43\nate\nproperty subject to the free disposition of\nGiven these facts, we conclude that the\nith\nthe agency with which the document re-\nHearing Transcript remains under the con-\nlis\nades.\ntrol of and continues to be the property of\nuld\nThe document at issue here is a photo-\nthe House of Representatives. We base our\ntu-\nstatic reproduction of a stenographic tran-\nconclusion both on the circumstances at-\ncy,\nscript of a hearing held before the House\ntending the document's generation and the\nght\nCommittee on Expenditures in the Execu-\nconditions attached to its possession by the\nith\ntive Departments on 27 June 1947, entitled\nCIA. The facts that the Committee met in\ning\n\"H.R. 2319-Unification of the Armed\nexecutive session 44 and that the Transcript\nnal\nForces.\" The Committee was sitting in Ex-\nwas denominated \"Secret\" plainly evidence\niffs\necutive Session. As the first order of busi-\na Congressional intent to maintain Congres-\ning\nness, the Chairman swore the stenographer\nsional control over the document's confiden-\nta-\nand typist to secrecy.⁴⁰ The transcript con-\ntiality.45 The fact that the CIA retains the\nndi-\ntains discussions of basic elements of intelli-\nTranscript solely for internal reference pur-\nuse\ngence methodology, both of this country\nposes indicates that the document is in no\nion.\nand of friendly foreign governments, as\nmeaningful sense the property of the CIA;\nand\nwell as detailed discussions of the CIA's\nthe Agency is not free to dispose of the\nlit-\nstructure and disposition of functions.41\nTranscript as it wills, but holds the docu-\ncy's\nWhen received by the CIA, the Transcript\nment, as it were, as a \"trustee\" for Con-\none,\n\"bore the typewritten marking \"Secret\" on\ngress. Under these circumstances, the deci-\nrec-\nits interior cover page; this marking ap-\nsion to make the transcript public should be\na\npears to have been appended at the time\nmade by the originating body, not by the\nthe Transcript was made.42 The typewrit-\nrecipient agency.\"\nting\n40. Cary Affidavit, supra note 30, J.A. 80.\ntive session, was not enacted until 1955. Brief\nat 41. See H.R.Doc. No. 416, supra note 38 at\n41. J.A. 80-81. Because the CIA methodology\n427. It is clear, however, that the Rule simply\nand disposition of functions described in the\nformalized longstanding practice. Cf., e. 8.,\nTranscript are still operable, and because dis-\nS.Rep.No.5, supra note 44 at 3-4: \"The sub-\nhall\nclosure of the information could damage U.S.\ncommittee calls attention to the following rules\nrom\nrelations with friendly foreign governments,\nof procedure which it adopted and which it has\nuch\nthe CIA itself separately classified portions of\nuniformly followed:\n(5) All testimony\necy\nthe Transcript \"Secret\" pursuant to Executive\nOrder 11652. See note 20 supra. We do not\ntaken in executive hearings shall be secret and\nwill not be released or used in public hearings\nconsider whether this classification was proper.\nwithout the approval of a majority of the sub-\n58,\nSee note 27 supra.\ncommittee.\" Even without the benefit of a\nkey,\n42. Cary Affidavit, supra note 30, J.A. 80.\ngeneral Rule, moreover, the transcript on its\nface manifests the indicia of Congress' Intent to\n43. Id. at 79-80.\nmaintain secrecy. Since it is Congress' intent\nH.R.\nto maintain secrecy, and not Congress' con-\n75):\n44. Cf. S.Rep.No.5, 81st Cong., 1st Sess. (\"First\nformance with the procedural nicetles of classi-\nLive\nAnnual Report of the Investigations Subcomm.\nfication, that makes the Transcript a \"Congres-\nof the Comm. on Expenditures in the Executive\nsional document,\" plaintiffs' arguments that\n&\nDepartments\") 3 (1949): \"Executive hearings\ndiscovery is required as to the identity of the\nwere\nutilized in cases involving na-\nclassifier, the date on which the document was\ntional security and in other instances when it\nclassified, etc., are irrelevant in reaching a deci-\nHR.\nwas determined that public disclosure might be\nsion here.\n76,\ndetrimental to the public interest.\"\nto\n46. Cf. Attorney General's FOIA Memorandum,\nmu-\n45. Plaintiffs point out that the predecessor of\nsupra note 24 at 24:\nual\ncurrent House Rule XI(2)(k)(7), supra note 38,\nWhere a record is requested which is of con-\ngoverning secrecy of testimony taken in execu-\ncern to more than one agency, the request\n348\n607 FEDERAL REPORTER, 2d SERIES\n[4, 5] We hold, therefore, that the Hear-\nB. The Hillenkoetter Statement.\ning Transcript is not an \"agency record\"\nThe Hillenkoetter Statement is conceded-\nbut a congressional document to which\nly an \"agency record.\" Although the entire\nFOIA does not apply.47 We reach this con-\n113-page document was originally classified\nclusion because we believe that on all the\n\"Secret,\" the CIA has declassified approxi-\nfacts of the case Congress' intent to retain\nmately 80% of it and released those portions\ncontrol of the document is clear. Other\nto plaintiffs. The Agency contends that\ncases will arise where this intent is less\nthe deleted portions are exempt from disclo-\nplain. We leave those cases for another\nsure under FOIA Exemptions 1\" and &\nday.48\nThe district court held this material ex-\nshould be referred to the agency whose inter-\nU.S.App.D.C., at 361 of 607 F.2d. Since the\nest in the record is paramount, and that agen-\nCIA has never contended that the Hillenkoetter\ncy should make the decision to disclose or\nStatement is a Congressional document-since.\nwithhold\nWhere a record request-\nindeed, the CIA has acted inconsistently with\ned from an agency is the exclusive concern of\nany such contention by declassifying and re-\nanother agency, the request should be re-\nleasing 80% of the document-we see no need\nferred to that other agency.\nto consider this question. We might note, how-\nThis rule was followed in Friendly Broadcasting\never, that between the Hillenkoetter Statement\nCo., 55 F.C.C.2d 775, 775-76 (1975) (where FBI\nand the Hearing Transcript substantial differ-\nReports were loaned to FCC solely for internal\nreference purposes, Reports were \"property of\nences lie. The former is a statement by a CIA\nofficial prepared by the CIA; we do not know\nthe Federal Bureau of Investigation\" and FBI,\n\"as the originator of the Reports,\nis\nthe circumstances of its delivery in Congress,\nthe agency to which the request should be\nand it was classified \"Secret,\" not by Congress,\naddressed\" under FOIA).\nbut by the CIA. The latter is a transcript of\ncolloquy between Congressmen and CIA wit-\n47. Plaintiffs argue that even if the Transcript\nnesses; it was created in Congress under dr-\nas a whole is a \"Congressional document,\"\ncumstances manifesting a plain Congressional\nthose portions originating with the CIA are\ndesire for secrecy, and it initially was labeled\nproducible as \"reasonably segregable por-\n\"Secret,\" not by the CIA, but by Congress.\"\ntion[s]' \" with the \"comments of members of\nCongress\ndeleted if necessary as\nThese distinctions are not, as our dissenting\ncolleague says, a matter of paper and ink. The\n'Congressional materials.\" Brief at 42 & n.15,\nciting 5 U.S.C. § 552(b) (last sentence) (1976).\nTranscript originated in Congress and remains\nThis argument is frivolous. Congress met in\na congressional document because it bears\nexecutive session, and marked the Transcript\nclear indicia of a congressional purpose to en-\n\"Secret,\" not only. to protect its members'\nsure secrecy; the Statement originated in the\nquestions, but to protect its witnesses' an-\nCIA and bears no indicia of any congressional\nswers. The cited provision from § 552(b), in\npurpose to ensure secrecy. It is these. indicia\nany event, requires segregation and disclosure\nof Congress' continuing control that are dispos-\nof non-exempt portions of agency records;\nitive of a document's \"congressional\" status.\nsince we hold that the Hearing Transcript is not\nThe dissent argues that '[c]ontrol' in this\nan agency record, this provision has no applica-\nsense goes to the question whether a document\ntion here.\nis exempt from disclosure-not to whether it is\nan 'agency record.\" Diss. op. at - of 197\n48. In ascertaining whether a record in the pos-\nU.S.App.D.C., at 360 of 607 F.2d. This argu-\nsession of an agency is nonetheless a congres-\nment seems to mean that Congress can exer-\nsional document, a court will of course accord\ncise \"control\" over secret documents that leave\ndue weight to the factors that influence us in\nits possession only by enacting FOIA exemp-\nthis case, including (1) Congress' clear intent to\ntions. We disagree. Congress has broad powe\nexempt congressional documents from disclo-\ners to keep its documents secret; when Con-\nsure under FOIA; (2) Congress' clear preroga-\ngress transfers secret documents to an agency,\ntive to prevent disclosure of its own confiden-\nfor a limited purpose and on condition of secre-\ntial materials; and (3) the danger of inhibiting\ncy, we see no reason to think it thereby waives\nthe legislative and judicial branches from mak-\nits own prerogatives of confidentiality and re-\ning their records available to the executive\nbranch.\nsigns itself to the FOIA exemptions which bind\nthe agency and not it.\nThe dissent argues that this test, and the\nconclusion it produces, prove too much: if the\n49. The deleted portions of the Statement were\nHearing Transcript is a Congressional docu-\nclassified \"Secret\" pursuant to Executive Order\nment, so also must the Hillenkoetter Statement\n11652 \"in the interest of national defense or\nbe, a reductio our colleague evidently views as\nforeign policy.\" See p. - of 197 U.S.App.\nad absurdum. See diss. op. at - of 197\nD.C., p. 344 of 607 F.2d & note 20 supra.\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n349\nCite as 607 F.2d 339 (1978)\nrempt, relying on Exemption 1. We agree,\nAgency.\"\nIn\nWeissman\nV.\nCIA,\nthis\nbut base our holding instead on Exemption\nCourt squarely held that \"both § 403(d)(3)\n3, without in any way impugning the cor-\nand § 403g are precisely the type of stat-\ned\nrectness of Judge Hart's conclusion.\nutes comprehended by exemption (b)(3).\" 55\nG\nAs originally enacted, FOIA provided\nThis conclusion derived incontrovertible\nns\nthat the Act's disclosure requirements \"[do]\nsupport from legislative history and was\nat\n10-\nnot apply to matters that are-.\n(3)\nunanimously adopted by other courts.⁵⁷\n3.\nspecifically exempted from disclosure by\nIn 1976 Congress amended Exemption 3\nstatute.\"d Two statutes are relevant to an\nin order to \"eliminate the gap created in\nex-\nExemption 3 claim by the CIA. A proviso\n[FOIA]\" by the Supreme Court's decision in\nthe\nto 50 U.S.C. § 403(d)(3) states that \"the\nFAA Administrator V. Robertson. Rob-\nDirector of Central Intelligence shall be\nertson held that a statute giving an agency\nresponsible for protecting intelligence\nbroad discretion to withhold information \"in\nre-\nsources and methods from unauthorized dis-\nthe interest of the public\" qualified as an\nclosure.\" Section 403g of the same title\nExemption 3 statute. Congress amended\nprovides that, \"in order further to imple-\nExemption 3 to provide that information\nfer-\nment\" this proviso, \"the Agency shall be\nshall be deemed specifically exempted from\nCIA\nexempted from\nthe provisions of\ndisclosure by statute only if such statute\njany\nlaw which require the publi-\n\"(A) requires that the matters be withheld\ncation or disclosure of the organization,\nfrom the public in such a manner as to\nof\nfunctions, names, official titles, salaries, or\nleave no discretion on the issue, or (B) es-\nwit-\ncir-\nnumbers of personnel employed by the\ntablishes particular criteria for withholding\n50. Although \"inquiries into the applicability of\nCong., 2d Sess. 12 (1974) (Conference Report)\nthe two exemptions may tend to merge,\" Phil-\n(same), U.S.Code Cong. & Admin.News 1974,\nUppi V. CIA, 178 U.S.App.D.C. 243, 250, 546\np. 6267.\nF.2d 1009, 1016 n.14 (1976), Exemption 3 may\nThe\nof course be invoked independently of Exemp-\n57. E. 8., Richardson V. Spahr, 416 F.Supp. 752,\ntion 1. See Weissman V. CIA, 184 U.S.App.\n753 (W.D.Pa.), aff'd, 547 F.2d 1163 (3d Cir.\nD.C. 117, 123, 565 F.2d 692, 698 (1977); Marks\n1976) (§§ 403(d)(3) & 403g are both Exemption\nen-\nV. CIA, 426 F.Supp. 708, 710-11 n.5 (D.D.C.\nthe\n3 statutes); Marks V. CIA, 426 F.Supp. 708,\n1977), appeal docketed, No. 77-1225 (D.C. Cir.\n3 March 1977); J. T. O'Reilly, supra note 30, at\n710-11 (D.D.C.1976), appeal docketed, No. 77-\n13.07. Whether the deleted portions of the\n1225 (D.C. Cir. 3 March 1977) (same); Baker V.\nHillenkoetter Statement were properly with-\nCIA, 425 F.Supp. 633, 635 (D.D.C.1977), appeal\nheld is perhaps more clearly and briefly stated\ndocketed, No. 77-1228, 188 U.S.App.D.C. 401,\nthis\nunder Exemption 3 than under Exemption 1,\n580 F.2d 664 (D.C. Cir. 3 March 1977) (same).\nhence we reach Judge Hart's conclusion by a\nIt\nis\ndifferent path.\n58. H.R.Rep.No.94-880, pt. 1, 94th Cong., 2d\n197\nSess. 23 (1976), U.S.Code Cong. & Admin.News\n52. 5 U.S.C. § 552(b)(3) (1970).\n1976, p. 2183, citing 422 U.S. 255, 95 S.Ct.\n2140, 45 L.Ed.2d 164 (1975). The revision in\n52 National Security Act of 1947, ch. 343, tit. I,\nExemption 3 represented a conforming amend-\n$ 102, 61 Stat. 497 (presently codified at 50\nU.S.C. $ 403(d)(3) (1970)).\nment to 5 U.S.C. § 552b(c)(3) (1976), part of the\nGovernment in the Sunshine Act, Pub.L. No.\nn CIA Act of 1949, ch. 227, § 7, 63 Stat. 211\n94-409, § 3(a), 90 Stat. 1241 (1976).\n(presently codified at 50 U.S.C. § 403g (1970)).\n59. Robertson involved § 1104 of the Federal\nst 184 U.S.App.D.C. 117, 565 F.2d 692 (1977).\nAviation Act of 1958, 49 U.S.C. § 1504 (1970),\nt\nbind\nSA, Id at 119, 565 F.2d at 694. See Phillippi V.\nwhich provides in pertinent part: \"Whenever\n[any person objects to public disclosure of in-\nCIA, 178 U.S.App.D.C. 243, 249 n. 19, 546 F.2d\n1009, 1015 n.14 (1976).\nformation received by the FAA], the Board or\nwere\nAdministrator shall order such information\nM S.Rep.No.93-854, 93d Cong., 2d Sess. 16\nwithheld from public disclosure when, in their\nor\njudgment, a disclosure of such information\nSources and Methods (50\nApp.\nwould adversely affect the interests of such\n(g))\nhave been\nperson and is not required in the interest of the\n552(b)(3) inspection under section\npublic.\"\n\"); S.Rep.No.93-1200, 93d\n350\n607 FEDERAL REPORTER, 2d SERIES\nor refers to particular types of matters to\n403g unimpaired.\" Scholarly comments-\n[6] I\nbe withheld.\" There is nothing on the\ntors have reached the same conclusion.\nwhether\nface of amended Exemption 3, or in its\nHaving decided that § 403(d)(3) and\nthat rele\nlegislative history, to suggest that Congress\n§ 403g remain qualifying statutes under -1\nin its e\nin 1976 intended to upset the well-estab-\namended Exemption 3, we must determine\nsources :\nlished Exemption 3 status of the CIA's pro-\nwhether the deleted portions of the Hillen-\nthe \"org\ntective statutes. Both § 403(d)(3) and\nkoetter Statement fall within these stat\n§ 403g \"refer[] to particular types of mat-\nutes' protective compass. A court may be\"\npersonne mitted b\nters to be withheld\"-namely, information\nable to make such a determination on the\nL Cary,\nrespecting intelligence sources and methods.\nbasis of affidavits, without the need for\nkoetter S\nRep. Abzug, the amendment's primary\ndiscovery or in camera inspection. Ex-\ntions of (\nsponsor in the House, explicitly stated on\nemption 3 differs from other FOIA exemp-,\national de\nthe floor that § 403g was one of the stat-\ntions in that its applicability depends less on.\n\"methods\nutes intended to qualify under the new\nthe detailed factual contents of specific doc.\nunique 1\nExemption 3.61 The only courts to consider\numents; the sole issue for decision is the\nwhich \"a\nthe issue have held that the amendment left\nexistence of a relevant statute and the in-\nclusion of withheld material within that\nconcepts\nthe Exemption 3 status of §§ 403(d)(3) and\nstatute's coverage.65\nwhich \"t]\nble\"; (4)\n60. Act of 13 Sept. 1976, Pub.L.No.94-409,\n63. See J. T. O'Reilly, supra note 30, at 11 13.07\n§ 5(b), 90 Stat. 1247 (presently codified at 5\n(\"mandatory\" nature of CIA statutes \"bars dis.\noperation\nU.S.C. $ 552(b)(3) (1976)). The amendment\nclosure under either the original or revised ver-\nforeign o\nbecame effective 12 March 1977, 180 days after\nsions of exemption (b)(3)''); Note, The Effect of\ntain intell\nits enactment. See Pub.L. No. 94-409, § 6.\nthe 1976 Amendment to Exemption Three of\nforeign g\nthe Freedom of Information Act, 76 ColumL-\nnot been\n61. 122 Cong. Rec. H9260 (daily ed. 31 Aug.\nRev. 1029, 1044 n.91 (1976) (§ 403g qualifies\n1976):\nunder revised Exemption 3 because it specifies-\nnonconclu\nI have been asked whether 50 U.S.C. [§]\nthe \"particular types of matters to be with\nthe delete\n403g, a statute relating to CIA exemption\nheld\").\nfrom laws such as the Sunshine Act and the\ntions\" and\nFreedom of Information Act, comes within\n64. Congress has instructed the courts to accord\nnel. We\nthe third exemption as recommended by the\n\"substantial weight\" to agency affidavits in na-\nconference. I have examined section 403g\ntional security cases. S.Rep.No.93-1200, 93d\nportions\nand believe that it does come within the ex-\nCong., 2d Sess. 12 (1974) (Conference Report):\nemption.\n120 Cong.Rec. 36,870 (1974) (remarks of Sen.\nIn Vaugh\nMuskie); Weissman V. CIA, 184 U.S.App.D.C.\nF.2d 820\nThe legislative history cites, by way of exam-\nS.Ct. 156\nple, in addition to the statute involved in Rob-\n117, 122 n.10, 565 F.2d 692, 697 n.10 (1977). A\nneed of ti\nertson, supra note 59, several statutes that\ncourt has discretion to conduct in camera in-\nwithheld\nwould not qualify under amended Exemption 3.\nspection under 5 U.S.C. $ 552(a)(4)(B) (1976),\nmatter,\nSee H.R.Rep.No.94-880, pt. 1, 94th Cong., 2d\nbut the legislative history makes clear that in\ndisclosab\nSess. 23 (1976), citing 18 U.S.C. § 1905 (1970);\ncamera inspection should be ordered only after\nof exemp\nS.Rep.No.94-1178, 94th Cong., 2d Sess. 14\nan agency has been given \"the opportunity to\nn.21. In\n(1976) (Conference Report), citing 42 U.S.C.\nestablish by means of testimony or detailed\ncamera i\n§ 1306 (Supp. V 1975). These statutes are of\naffidavits that the documents are clearly ex-\nsegregab\nthe oceanic variety involved in Robertson and\nempt from disclosure.\" S.Rep.No.93-1200, 93d\nbly dimit\nare in marked contrast to the CIA statutes\nCong., 2d Sess. 9 (1974) (Conference Report),\nare by no\ninvolved here. 42 U.S.C. § 1306 provides that\nU.S.Code Cong. & Admin.News 1974, p. 6287.\nthe Age\nno disclosure of any information obtained at\nThe description contained in the affidavits\nleased &\nany time by or from the Departments of HEW\nbe sufficiently detailed to show that the con-\nplaintiffs\nor Labor shall be made except as relevant regu-\ntested matter \"logically falls into the category\nlations prescribe. 18 U.S.C. § 1905 prohibits\nof the exemption indicated.\" Weissman, 184\n66. See V\n\"[d]isclosure of confidential information gener-\nU.S.App.D.C. at 122, 565 F.2d at 697.\n346, 484\nally\" by any officer or employee of the United\nU.S. 977\nStates \"in any manner or to any extent not\n65. See EPA V. Mink, 410 U.S. 73, 95 n., 93\n67. Sectic\nauthorized by law.\"\nS.Ct. 827, 840, 35 L.Ed.2d 119 (1973) (Stewart,\nAgency\n62. Fonda V. CIA, 434 F.Supp. 498, 503-04 & n.6\nJ., concurring) (under Exemption 3 \"the only\nat all abi\n(D.D.C.1977), appeal docketed, No. 77-1989\n'matter' to be determined in a district court's de\n178 U.S.\n(D.C. Cir. 4 Nov. 1977); Hayden V. CIA, No.\nnovo inquiry is the factual existence of [a rele-\n1015 n)\n76-284, slip op. at 3-4 (D.D.C. 15 Apr. 1977),\nvant] statute, regardless of how unwise, self-\n\"persom\nappeal docketed, No. 77-1894 (D.C. Cir. 30\nprotective, or inadvertent the enactment might\ndisclosur\nSept. 1977).\nbe\"); J. T. O'Reilly, supra note 30, at 1 13.07.\nBut see\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n351\nCite as 607 F.2d 339 (1978)\nenta-\n[6] In this case, the issue for decision is\nwere properly withheld under FOIA Ex-\nion.º\n\"whether the CIA has shown by affidavit\nemption 3.\nand\nthat release of the Hillenkoetter Statement\nThe dissent would deny summary judg-\nunder\nin its entirety would reveal \"intelligence\nment on the Exemption 3 status of the\nmine\nsources and methods,\" e. g., by revealing\nHillenkoetter Statement because the CIA\nlillen-\nthe \"organization\" or \"functions\" of CIA\ndid not furnish a Vaughn v. Rosen index of\nstat-\npersonnel. According to an affidavit sub-\nthat document. This argument exalts\nay be\nmitted by CIA Legislative Counsel George\nform over substance. Vaughn involved a\nn the\nL Cary, the deleted portions of the Hillen-\nrequest for numerous documents running to\nd for\nkoetter Statement contain detailed descrip-\n\"mäny hundreds of pages,\" and the Govern-\nEx-\ntions of (1) \"intelligence collection and oper-\nment made a blanket claim that \"the docu-\nxemp-\national devices\nstill utilized\"; (2)\nments, as a whole, [were] exempt under\nless on\n\"methods of procurement and supply\nthree distinct exemptions.\" We found it\nic doc-\nunique to the Intelligence Community\"\n\"preposterous to contend that all of the\nis the\nwhich \"are currently utilized\"; (3) \"basic\ninformation [was] equally exempt under all\nthe in-\nconcepts of intelligence methodology\" of\nof the alleged exemptions,\" and found \"an\nthat\nwhich \"the essential elements remain via-\nadequate indexing system\" necessary owing\nble\"; (4) \"specific clandestine intelligence\nto our \"inability to determine which exemp-\n11 13.07\noperations,\" including the \"names [of] the\ntions appl[ied] to what portions of the infor-\nars dis-\nforeign countries involved\"; and (5) \"cer-\nmation.\" The present case involves 23\nsed ver-\nEffect of\ntain intelligence methodologies of aTriendly\npages of deletions from one document. The\nThree of\nforeign government.\" This affidavit has\nCIA's affidavit lists the deletions; provides\nolum.L\nnot been challenged. It demonstrates, in\na \"relatively detailed analysis\" of the ma-\nqualifies\nmonconclusory and detailed fashion, that\nterial deleted; makes clear which exemp-\nspecifies\nwith-\nthe deleted material describes \"intelligence\ntions are claimed for the deletions (Exemp-\nmethods,\" including the \"func-\ntions 1 & 3); and explains why the deleted\n\"tions\" and \"organization\" of CIA person-\nmaterial fits within the exemptions claimed\naccord\nnel.\" We hold, therefore, that the deleted\n(i. e., how the deletions relate to \"national\nis in na-\n200. 93d\nportions of the Hillenkoetter Statement\nsecurity\" and \"intelligence sources and\nReport):\nin Vaughn V. Rosen, 157 U.S.App.D.C. 340, 484\n(D.D.C.1977), appeal pending, No. 77-1228\nof Sen.\nF.2d 820 (1973), cert. denied, 415 U.S. 977, 94\n(D.C. Cir. 1978) (§ 403g personnel matter ex-\nApp.D.C.\nS.Ct. 1564, 39 L.Ed.2d 873 (1974), we noted the\nempt under Exemption 3 even absent proof\n977). A\nneed of techniques to test for the presence in a\nthat disclosure would in fact compromise intel-\nmera in-\nwithheld document of segregable, nonexempt\n(1976).\nligence sources and methods).\nmatter, lest an agency be able to \"sweep{]\nthat in\ndisclosable material under a blanket allegation\nnly after\n68. See diss. op. at\n&\nof 197\nof exemption.\" Id., at 347 n.21, 484 F.2d at 827\ntunity to\nU.S.App.D.C., at 356-358 & 364-365 of 607\nn21. In this case, the need for discovery or in\ndetailed\nF.2d, citing 157 U.S.App.D.C. 340, 346-48,\ncamera inspection to test for the presence of\nearly ex-\n484 F.2d 820, 826-28 (1973), cert. denied, 415\nsegregable, non-exempt material is considera-\n1200, 93d\nbly diminished: the CIA's claims of exemption\nU.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).\nReport).\nare by no means \"blanket\" or \"sweeping,\" and\np. 6287.\nthe Agency has already segregated and re-\n69. See 157 U.S.App.D.C. at 345, 347, 484 F.2d\nvits must\nleased 80% of the Hillenkoetter Statement to\nat 825, 827.\nthe con-\nplaintiffs.\nman, category 184\n70. Id. at 345-348, 347 n.22, 484 F.2d at 827-28,\nSee Vaughn V. Rosen, 157 U.S.App.D.C. 340,\n827 n.22.\nx346, 484 F.2d 820, 826 (1973), cert. denied, 415\nU.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).\n71. Id. at 346, 484 F.2d at 826. See Maroscia V.\n95 n.° 93\n87, Section 403g does not of course license the\nLevi, 569 F.2d 1000, 1003 (7th Cir. 1977) (per\n\"the (Stewart. only\nAgency \"to refuse to provide any information\ncuriam) (upholding summary judgment on Ex-\nat all about anything it does.\" Phillippi V. CIA,\nemption 1 status of CIA document, without in\ncourt's de\n178 243, 249 n.14, 546 F.2d 1009,\ncamera inspection, on basis of affidavit describ-\nof [a rele- self.\nthis case, disclosure of the\ning document \"In some detail, indicating the\nwise, ent might\nat issue would lead to\ncircumstances and the sensitivity of the infor-\nat 11 13.07.\nBut disclosure of intelligence sources and methods.\nmation,\" and explaining \"[t]he potential harm\nsee Baker V. CIA, 425 F.Supp. 633, 635-36\nresulting from disclosure of [the] document\").\n352\n607 FEDERAL REPORTER, 2d SERIES\nmethods\"). The CIA's justifications, we\nfending agency must prove that each docu-,\"\nfe\nthink, could not have been much more de-\nment that falls within the class requested\ndu\ntailed without \"compromis[ing] the secret\neither has been produced, is unidentifiable.\nin\nnature of the information.\" Although\nor is wholly exempt from the Act's inspec-\npa\nthe Agency did not tender its analysis in\ntion requirements.\" In determining\nm\nthe form of an \"index,\" it satisfied the\nwhether an agency has met this burden of:\np\n\"detailed justification,\" \"specificity,\" and\nproof, the trial judge may rely on affids.\"\ngo\n\"separation\" requirements whose satisfac-\nse\nvits. Congress has instructed the courts to\"\ntion the Vaughn index was meant to en-\nor\naccord \"substantial weight\" to agency affi-\nsure. Although we do not retreat in the\ndavits in national security cases,⁷⁶ and these\ng\nleast from our belief that an index is of\nci\naffidavits are equally trustworthy when\ngreat assistance to requesters and courts in\nC\nappropriate cases, common sense suggests\nthey aver that all documents have been\nly\nthat an index was unnecessary for the 23\nproduced or are unidentifiable as when they\nal\npages that were so specifically described\naver that identified documents are exempt.\nqi\nand justified here.\nThe agency's affidavits, naturally, must be\nis\n\"relatively detailed\" and nonconclusory n\nm\nC. The Thoroughness of the CIA's\nand must be submitted in good faith. But\nde\nSearch for Responsive Documents\nif these requirements are met, the district\n\"I\nThe CIA asserts that exhaustive searches\njudge has discretion to forgo discovery and\nW\nof its files have succeeded in locating eight,\naward summary judgment on the basis of\npl\naffidavits.⁷⁸\nno\nand only eight, documents that are respon-\nor\nsive to plaintiffs' FOIA request. Plain-\nIn support of its motion for summary\ntiffs contend that discovery is needed to\njudgment, the CIA submitted affidavits ex-\ng\nor\ntest whether the CIA's search was com-\necuted by Gene F. Wilson, the Agency's\nbe\nplete. The district court awarded summary\nInformation and Privacy Coordinator. Wil-\nth\njudgment in favor of the CIA, finding that\nson stated that in response to plaintiffs'\nin\n\"the CIA ha[d] made a full search in good\ninitial request for \"legislative history\" be\nsu\nfaith and that no further discovery [was]\n\"caused a search to be made for all printed\nta\njustified.\" We agree.\nhearings, transcripts of hearings, [and]\nW\n[7-9] In order to prevail on an FOIA\nprinted reports issued by Committees of the\nto\nmotion for summary judgment, \"the de-\nHouse, Committees of the Senate or Con-\nth\n72. Vaughn V. Rosen, 157 U.S.App.D.C. at 346-\n78. See Nolen V. Rumsfeld, 535 F.2d 890, 891-92\n47, 484 F.2d at 826-27.\n(5th Cir. 1976) (granting summary judgment\nor\nupon agency's representations \"in candor and\n73. These documents are the five published\nor\nin good faith\" that all responsive documents\nhearings (released in full). the Vandenberg\nStatement (released in full), the Hillenkoetter\nwere made available to plaintiff); Association\nse\nof Nat'l Advertisers, Inc. V. FTC, 38 Ad.L.2d\nda\nStatement (withheld in part), and the Hearing\nTranscript (withheld in full). See pp.\n643, 644 (D.D.C. 1 April 1976) (where record\nof 197 U.S.App.D.C., pp. 343-344 of 607 F.2d\nindicates that agency search was \"reasonably\n79\nsupra.\nthorough,\" discovery may be limited by court;\n80\nto justify discovery where FTC \"has already\n74. J.A. 190.\nstated under oath that the search was Commis-\nsion-wide and complete,\n[p]laintiff\n75. National Cable Television Ass'n, Inc. V. FCC,\n81\nmust demonstrate some substantial discrepan-\n156 U.S.App.D.C. 91, 94, 479 F.2d 183, 186\n(1973).\ncy between the defendants' actions and words\n82\n\"); Exxon Corp. V. FTC, 384 F.Supp.\n76. S.Rep.No.93-1200, 93d Cong., 2d Sess. 12\n755, 759-60 (D.D.C.1974), remanded, 174 U.S.\n83\n(1974) (Conference Report); 120 Cong.Rec. 36,-\nApp.D.C. 77, 527 F.2d 1386 (1976), dismissed,\n870 (1974) (remarks of Sen. Muskie). See EPA\nNo. 73-1928 (D.D.C. 28 Feb. 1977) (limiting\n84\nV. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35\ndiscovery where affidavits demonstrated ade-\nL.Ed.2d 119 (1973).\nquacy of search).\n85\n77. Vaughn V. Rosen, 157 U.S.App.D.C. 340,\n86\n346, 484 F.2d 820, 826 (1973), cert. denied, 415\nU.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n353\nCite as 607 F.2d 339 (1978)\nference Committees.\" This search pro-\nsearches undertaken, and a detailed expla-\nduced five published reports and the Hear-\nnation of why further searches would be\ning Transcript. Subsequently, plaintiffs ex-\nunreasonably burdensome. Plaintiffs ar-\npanded their request to include all docu-\ngue, however, that even if Wilson's affida-\nments \"which may have been used to pre-\nvits are otherwise sufficient to support\npare for Congressional testimony.\" Wil-\nsummary judgment in favor of the CIA,\nson then conducted a \"further exhaustive\ndiscovery is required here because there is\nsearch\" for \"copies of prepared testimony\nreason to doubt the Agency's good faith.\nor statements presented in response to con-\ngressional consideration of the legislation\"\n[10] First, plaintiffs note that hearings\ncited by plaintiffs.⁸⁾ In this search, the\noccurred on the CIA's enabling statutes for\nCIA \"interpreted [plaintiffs'] request broad-\nwhich no published transcripts exist, and\nly enough to ensure that [it] would locate\nargue that unpublished transcripts of these\nall documents within the scope of the re-\nhearings, as well as CIA back-up documents\nquest,\" and \"searched and reviewed all files\nprepared for use at these hearings, \"must\nwhich might contain [responsive] docu-\nexist.\" Although appeals to common\nments.\" This search produced the Van-\nsense are not altogether to be condemned,\ndenberg and Hillenkoetter Statements, but\nplaintiffs' argument is unpersuasive here.\n\"failed to locate any additional records\nEven if we assume that the' documents\nwhich could be considered responsive to\nplaintiffs posit were created, there is no\nplaintiffs' request.\" Since the CIA has\nreason to believe that the documents, thirty\nno indices or compendiums identifying rec-\nyears later, still exist, or, if they exist, that\nords as \"preparatory documents for con-\nthey are in the possession of the CIA.\ngressional testimony,\" any additional rec-\nMoreover, even if the documents do exist\nords of this description, if they exist, could\nand the CIA does have them, the Agency's\nbe found only by \"a page-by-page search\"\ngood faith would not be impugned unless\nthrough the \"84,000 cubic feet of documents\nthere were some reason to believe that the\nin the [CIA] Records Center.\" Even if\nsupposed documents could be located with-\nsuch a page-by-page search were under-\nout an unreasonably burdensome search. It\ntaken, it would be \"impossible to determine\nis well established that an agency is not\nwhich documents, if any, were in fact used\n\"required to reorganize [its] files in re-\nto prepare for congressional testimony on\nsponse to [a plaintiff's] request in the form\nthe legislation cited by plaintiffs.\"\nin which it was made,\" and that if an\nWe think that Wilson's sworn affidavits\nagency has not previously segregated the\non their face are plainly adequate to dem-\nrequested class of records production may\nonstrate the thoroughness of the CIA's\nbe required only \"where the agency [can]\nsearch for responsive documents. The affi-\nidentify that material with reasonable ef-\ndavits give detailed descriptions of the\nfort.\"88 Wilson's affidavits plainly show\n7a. J.A. 174.\n87. Irons V. Schuyler, 151 U.S.App.D.C. 23, 30,\n465 F.2d 608, 615, cert. denied, 409 U.S. 1076,\n80. J.A. 106. See pp.\nof 197 U.S.App.\n93 S.Ct. 682, 34 L.Ed.2d 664 (1972).\nD.C., pp. 343-344 of 607 F.2d supra.\n81, J.A. 78, 174.\n88. National Cable Television Ass'n, Inc. V. FCC,\n156 U.S.App.D.C. 91, 100, 479 F.2d 183, 192\n82. J.A. 78.\n(1973). See H.R.Rep.No.93-876, 93d Cong., 2d\nSess. 5-6 (1974), U.S.Code Cong. & Admin.\n83. J.A. 174.\nNews 1974, p. 6271 (description of records re-\nquested must enable \"a professional employee\nu J.A. 175.\nof the agency who [is] familiar with the subject\narea of the request to locate the record with a\n85. Id.\nreasonable amount of effort\").\n86. J.A. 110 (emphasis in original). See Brief of\nAppellants at 26-27.\n354\n607 FEDERAL REPORTER, 2d SERIES\nthat the effort required to locate the hy-\nthat may have been \"the basis for testimo-\nthere is\npothesized \"back-up\" documents would be\nny at hearings\" or \"included in\nof Wils\nunreasonable here.\nreports\" on those bills. Fifteen of the nev-\nThird\nSecond, plaintiffs argue that the Church\nenteen documents plaintiffs cite from the\n\"patter\nCommittee Report refers to several docu-\nChurch Committee Report lie unmistakably\ning wit\nments that \"appear to be within the scope\noutside the scope of their FOIA request.\"\nfides.\nof plaintiffs' FOIA request\nand\nThe two remaining documents are tran-\nhaving\ncopies of which could reasonably be expect-\nscripts of Congressional hearings in execu-\nfound si\ned to be in the possession of the CIA, but\ntive session. In his affidavit, Wilson stats\n\"inconsi\nwhich defendants have neither identified or\ned that these documents, \"if they exist, are\ndisclosu\nproduced\nThis argument is\nnot held by the [CIA].\" Since the\ntake a\nsimilarly unpersuasive. In their expanded\nscripts are Congressional materials, and\nHoltz o\nrequest for \"legislative history,\" plaintiffs\nsince there is no indication in the Church\nry,\" def\nsought access to Congressional reports and\nCommittee Report that the transcripts were...\nreports;\nhearings on specific bills, and CIA materials\nreceived from or returned to the CIA,\nher to\nHoltz r\n89. Final Report of the Senate Select Committee\nconstitutes a report or hearings on that legisla-\nhearing\nto Study Governmental Operations with Re-\ntion and none was prepared for testimony on?\nspect to Intelligence Activities, S.Rep.No.94-\nthat legislation. See Wilson Affidavit, J.A. 183.\nHearing\n755, book 1, 94th Cong., 2d Sess. (1976) [here-\nSkidmo\ninafter \"Church Committee Report\" or \"Re-\n92. Hearings before the Senate Armed Services\nport\"].\nComm. on S. 758 (1947), Hearings before the\nhearing\nHouse Comm. on Expenditures in the Execu-\nback-up\n90. J.A. 178.\ntive Departments on H.R. 2139 (1947) (cited in\nVanden\nReport, e. 8., at 72 n.6). The Hearing Tran-\nscript identified by the CIA contains some of\nThe Ag\n91. In their Brief at 21-23 n.7, plaintiffs refer to\nthe following documents:\nthe testimony taken at the House hearings\nsure fol\n(a) Two memoranda from Wm. J. Donovan\nPlaintiffs seek, and the CIA denies possession.\ntern of\nto the President, dated 1941 and 1944 (cited in\nof, transcripts of the remainder of the testimo™\nanythin\nReport at 481 n.24 & 482 n.28). These docu-\nny taken at those hearings.\ndeed, the\nments antedate by at least three years the legis-\nlation cited by plaintiffs; neither memorandum\n93. J.A. 183.\nV. CIA\ndiscusses any legislation whatever, nor was ei-\nalways\nther prepared for testimony on legislation. See\n94. The Church Committee Report cites only\nlicized I\nWilson Affidavit, J.A. 183.\ntwo documents that are said to be \"on file at\nand 20-\n(b) Three memoranda from the CIA General\nthe CIA.\" The first is the \"Statement of the\nCounsel to the Director, dated 1947-49 (cited in\nDirector of Central Intelligence [Hillenkoetter]\nrequest\nReport, e. g., at 132 n.19, 72 n.7 & 492 n.70).\nBefore the House Armed Services Committee\nalone ca\nThese documents are internal CIA memoranda\n[on] 8 April 1948\" (cited in Report at 494 n.74).\nof good\nwhich were not prepared for testimony on the\nThis is the \"Hillenkoetter Statement\" which the\ncited legislation and were in no way used in the\nCIA identified and for the most part released.\nThe 6\nlegislative process. See Wilson Affidavit, J.A.\nThe second is so-called \"Testimony of Gen.\ning the\n183.\nHoyt S. Vandenberg before the House Armed\ncovery\n(c) Three transcripts of Congressional testi-\nServices Committee Hearing on H.R. 5871,\nwhethe\nmony, dated 1975 (cited in Report, e. 8. at 141\n4/8/48\" (cited in Report at 495 n.80). The CIA\nn.l, 133 n.27 & 483 n.32). These documents\nat oral argument denied possession of this doc-\n95. 18\npostdate by 26 years the legislation cited by\nument. We believe that the document in all\n(footr\nplaintiffs; the testimony was not given in hear-\nprobability does not exist. According to the\nT\nings on that legislation.\nCongressional Record Daily Digest, the only\n(d) Three internal CIA memoranda, dated\nCIA officials to testify on H.R. 5871 before the\ncon\n1961-74, and one memorandum prepared by\nHouse Armed Services Committee on 8 April\nma\nthe\nthe Justice Dept., dated 1962 (cited in Report,\n1948 were Hillenkoetter and Walter Pforzheim-\ne. g., at 128 n.la, 133 n.25, 478 n.10 & 133\ner. 94 Cong.Rec. D242 (1948). The error in\ncar\nn.26). These documents postdate by 13 years\nthe Church Committee Report seems easily ex-\nme\nthe legislation cited by plaintiffs; none of the\nplicable. The transcript of Hillenkoetter's 8\nbe\nmemoranda was prepared for testimony on\nApril 1948 testimony was entitled simply\nse₁\nthat legislation. See Wilson Affidavit, J.A. 183.\n\"Statement of the Director of Central Intelli-\nSee\n(e) Three draft legislative histories of the\ndocl\ngence.\" Hillenkoetter was Director in 1948,\nCIA prepared by the CIA Legislative Counsel's\n1\n\"The\nand Vandenberg was Director in 1947. Appar-\nOffice, dated 1967 (cited in Report, e. 8., at 71\nently, the report wrongly attributed the 8 April\ncon:\nteris\nn.5 & 480 19). These documents postdate by\n1948 statement of the unnamed CIA Director to\n18 years the legislation cited by plaintiffs; none\ned (\nHillenkoetter's predecessor.\n60\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n355\nCite as 607 F.2d 339 (1978)\nthere is no reason to question the good faith\nsearch used an \"underinclusive\" definition\n10-\nof Wilson's asseveration.\nof \"legislative history.\" We disagree.\n:V-\nThird, plaintiffs argue that the CIA's\nThe CIA personnel conducting the search\nhe\n\"pattern of obfuscation and delay\" in deal-\nevidently used the definition of \"legislative\nbly\ning with them signals the Agency's mala\nhistory\" that plaintiffs gave them, namely,\nL\"\nfides. The Agency, they say, first denied\n\"hearings, reports, and Executive Branch\nan-\nhaving any responsive documents, then\nback-up documents.\" That this is so is sug-\ncu-\nfound some, then found some more: these\ngested by the fact that the CIA's search\nat-\n\"inconsistent positions\" and this piecemeal\nproduced hearings, reports, and Executive\nare\ndisclosure are said to imply bad faith. We\nBranch backup documents. Nor do we\nan-\ntake a different view of the facts. Sara\nthink discovery was necessary to enable\nand\nHoltz originally requested \"legislative histo-\nplaintiffs \"to reformulate their request to\nrch\nry,\" defined as Congressional hearings and\neliminate confusion and the possibility of\nere\nreports; the CIA not unnaturally directed\nfuture lawsuits.\" \"Legislative history\"\nA,M\nher to the Library of Congress. When\nadmittedly is not a term whose meaning\nHoltz replied that she wanted unpublished\ncan be nicely cabined within bright lines;\nhearings and reports, the CIA identified the\nbut it is the term plaintiffs used, and if any\non\n183.\nHearing Transcript. When Goland and\nambiguity was introduced thereby plaintiffs\nSkidmore said that they wanted not only\nmust reap what they have sown. It would\nthe\nhearings and reports, but Executive Branch\nbe bizarre indeed if a plaintiff, simply by\nback-up documents, the CIA identified the\nemploying ambiguous language in his FOIA\nin\nVandenberg and Hillenkoetter Statements.\nrequest, could assure himself of potentially\nof\nThe Agency's \"piecemeal\" pattern of disclo-\nharassing discovery for the purpose of dis-\nsure followed faithfully the piecemeal pat-\npelling the confusion he had engendered.\ntern of requests, and thus here indicated, if\nanything, good faith rather than bad; in-\n[11] We hold, therefore, that plaintiffs\ndeed, this Court held as much in Weissman\nhave made no showing of CIA bad faith\nV. CIA.* The Agency's responses were not\nsufficient to impugn the Wilson affidavit,\nalways timely; but in view of the well-pub-\nwhich on its face suffices to demonstrate\nlicized problems created by the statute's 10-\nthat the CIA's search for responsive docu-\nat\nand 20-day time limits for processing FOIA\nments was complete. For this reason, the\nthe\nrequests and appeals,\" the CIA's delay\ndistrict court's grant of summary judgment\nalone cannot be said to indicate an absence\nwithout discovery was within its discretion.\nof good faith.\nthe\nThe dissent, while not seriously question-\nD. The CIA's Definition of Agency\ning the CIA's good faith, says that dis-\n\"Records.\"\ncovery is needed in any event to ascertain\nPlaintiffs contend that the CIA's defini-\nCLA\nwhether the CIA personnel conducting the\ntion of agency \"records\" is unduly narrow,\"\nall\n95. 184 U.S.App.D.C. at 123, 565 F.2d at 698\n96. See J. T. O'Reilly, supra note 30, at 17.02.\nthe\n(footnote omitted):\nThe CIA dealt with the instant request in a\n97. See diss. op. at - of 197 U.S.App.D.C., at\nthe\nconscientious manner. It disclosed much\n366 of 607 F.2d.\nmaterial, it released additional material as\nthe result of an admInistrative appeal, and it\n98. See id. at - at 366 of 607 F.2d.\nin\ncame forward with newly discovered docu-\nex-\nments as located. Agency documents have\n99. 32 C.F.R. § 1900.3(g) (1976) defined CIA\n8\nbeen released to plaintiff-appeilant on four\n\"records\" to exclude (1) certain indexing and\nseparate occasions.\nfiling documents; (2) certain routing and trans-\nSee Fonda V. CIA, 434 F.Supp. at 502, appeal\nmittal sheets; (3) books and periodicals; (4)\ndocketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977):\ndocuments prepared by an agency other than\n\"The CIA dealt with plaintiff's request in a\nthe CIA; and (5) documents furnished by for-\nconscientious manner. It disclosed much ma-\neign governments under promise of confiden-\nto\nterial and it came forward with newly discover-\ntiality. The definition was amended in 1977\ned documents as located.\nand the latter two exclusions were removed.\n807 F.2d-10\n356\n607 FEDERAL REPORTER, 2d SERIES\nand that they have been injured because\nthey argue that even if all relief should be\n1\nthe Agency relied on this definition in deny-\ndenied them they have \"substantially pre-\nI\ning them records to which they are entitled.\nvailed\" because the CIA released the Van-,\nThe CIA responds that plaintiffs lack stand-\ndenberg Statement and portions of the Hil-\ning to maintain this challenge, arguing that\nlenkoetter statement after they commenced:\nit did not rely on the definition's \"excep-\nsuit. Even if plaintiffs could show some!\ntions\" in processing plaintiffs' request. The\ncausal nexus between their litigation and\ndistrict court did not reach this issue. We\nthe CIA's disclosure,¹⁰¹ which they have not\no\ndo not reach it either. We have held that\n1\ndone,¹⁰² we doubt that plaintiffs could be\nthe CIA made a full search in good faith for\nt\nsaid to have \"substantially prevailed\" if\nresponsive documents, and that the with-\n1\nheld material was withheld properly. Since\nthey, like Pyrrhus, have won a battle but\nd\nlost the war.¹⁰³\nplaintiffs have received all documents to\nA\nwhich they are entitled, no live controversy\nThe judgment of the district court ac-\nn\nremains between them and the CIA on the\ncordingly is\n8\ndefinitional issue.\nAffirmed.\nto\nV\nE. Attorneys' Fees.\nn\nBAZELON, Circuit Judge, dissenting:\nn\nThe trial judge declined to award attor-\nI respectfully submit that the court today\nly\nneys' fees to plaintiffs. The FOIA provides\nde\nthat attorneys' fees and costs may be as-\ndeparts from well-established principles in\nde\nsessed against the United States \"in any\nthis circuit in order to sustain summary\ndi\ncase\nin which the complainant\njudgment for the Central Intelligence\nF\nhas substantially prevailed.\" 100 Although a\nAgency (CIA). The court also adopts a\ncursory reading of this opinion would not\nrestrictive definition of \"agency records\"\na\nsuggest that plaintiffs have passed this test,\nthat erodes the right to disclosure under the\nof\nSee 42 Fed.Reg. 24,049 (12 May 1977) (codified\npost hoc, ergo propter hoc, a fallacy that Con-\nD\nat 32 C.F.R. $ 1900.3(g) (1977)).\ngress wisely refrained from incorporating into\nal\nthe attorneys' fees provision of FOIA. See\n100. 5 U.S.C. 552(a)(4)(E) (1976).\ner\nVLIAC, 546 F.2d at 514.\nis\n101. See Vermont Low Income Advocacy Coun-\ned\ncll, Inc. (VLIAC) V. Usery, 546 F.2d 509, 513 (2d\n103. In order to win the war, plaintiffs need not\nCir. 1976) (Friendly, J.):\nobtain a judgment in court. See Cuneo V.\nro\nIn order to obtain an award of attorney\nRumsfeld, 180 U.S.App.D.C. 184, 188-89, 553\nta\nfees in an FOIA action, a plaintiff must show\nF.2d 1360, 1364-65 (1977) (Tamm, J.) (citing\nsi\nat minimum that the prosecution of the ac-\ncases); VLIAC, 546 F.2d at 513. They must,\ntion could reasonably have been regarded as\nhowever, substantially prevail. Cf. Cuneo, 180\n1.\nnecessary and that the action had substantial\nU.S.App.D.C. at 189, 553 F.2d at 1365 (plain-\ncausative effect on the delivery of the infor-\ntiffs substantially prevailed where, \"[a]fter al-\n2.\nmation.\nmost eight years of tedious, hard fought litiga-\nou\n102. Res ipsa loquitur, as it were, is of no assist-\ntion, the government, faced with the appoint-\n-\nance to plaintiffs here. The CIA's release of\nment of a special master to review the case,\"\n:\nthe Statement, to all appearances, represents\nsupplied all the material requested). Even of\n-\nI\nits good-faith efforts to come forward with\nthe plaintiff is held to have substantially pre-\n-\nnewly-discovered documents as located. See\nvailed, the award of attorneys' fees lies within\n-\np. - of 197 U.S.App.D.C., p. 355 of 607 F.2d\nthe district court's discretion. See Cuneo, 180\n-\n& note 95 supra. The fact that these docu-\nU.S.App.D.C. at 189-90, 553 F.2d at 1365-66;\nments were released after plaintiffs brought\nVLIAC, 546 F.2d at 512-13 (citing legislative\nI\nsuit on 28 Jan. 1977, to all appearances, owes\nhistory). An important factor in the exercise\nto the time-consuming nature of a search for\nof this discretion is a determination whether\n-\nmaterials \"used to prepare for congressional\nthe agency has been \"recalcitrant in its opposi-\n(\ntestimony,\" p. - of 197 U.S.App.D.C., p. 353\ntion to a valid claim or [has] otherwise engaged\n1\nof 607 F.2d supra; and to the fact that plain-\nin obdurate behavior.\" Cuneo, 180 U.S.App.\n$\ntiffs did not request access to such materials\nD.C. at 190, 553 F.2d at 1366. The CLA's be-\n$\nuntil 16 Dec. 1976. See pp. of 197\nhavior was neither recalcitrant nor obdurate\nI\nU.S.App.D.C., pp. 343-344 of 607 F.2d su-\nhere.\no\npra. Plaintiffs' argument, in fine, boils down to\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n357\nCite as 607 F.2d 339 (1978)\nFreedom\nof\nInformation\nAct\n1\n(FOIA)\nand\nant agency] conclusory and generalized alle-\nshould be\npromotes secret law.\ngations of exemptions\nbut will\ntially pre-\nrequire a relatively detailed analysis in\nthe Van-\nI. THE NEED FOR DISCOVERY\nmanageable segments [of the contents of\nof the Hil-\nIN FOIA CASES\ndocuments the agency seeks to withhold].\"\nommenced\nWithout discovery, a party to litigation\nId. 157 U.S.App.D.C. at 346, 484 F.2d at 826.\nhow some\nmay not have access to facts necessary to\nWe held such a procedure necessary-be-\nation and\noppose a motion for summary judgment.\nfore summary judgment could be granted\n1 have not\nThis problem is especially acute for plain-\nto the government--to enable a FOIA\ncould be\ntiffs in FOIA cases. Indeed, recognition of\nvailed\"\nif\nplaintiff \"to argue with desirable legal pre-\nthis dilemma has shaped a number of our\ncision for the revelation of the concealed\nbattle but\ndecisions. In Vaughn V. Rosen, 157 U.S.\ninformation.\" Id. 157 U.S.App.D.C. at 343,\nApp.D.C. 340, 484 F.2d 820 (1973), cert. de-\n484 F.2d at 823.\ncourt ac-\nnied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d\n873 (1974), summary judgment was granted\nSubsequently, the problem of ensuring\nto the government on the basis of an affida-\nadversariness arose in a context similar in\nvit declaring that the documents sought\nseveral respects to the case at bar. In\nwere exempt from disclosure. We reversed,\nSchaffer V. Kissinger, 164 U.S.App.D.C. 282,\nenting:\nrecognizing that a FOIA plaintiff \"obvious-\n505 F.2d 389 (1974) (per curiam), before\nty cannot know the precise contents of the\ntoday\nplaintiff was able successfully to pursue\ndocuments sought; secret information is, by\ninciples in\ndiscovery, summary judgment was granted\ndefinition, unknown to the party seeking\nsummary\nto the government on the basis of an affida-\nfdisclosure[,]\" 157 U.S.App.D.C. at 343, 484\nntelligence\nF.2d at 823; that \"[t]his lack of knowledge\nvit stating that the documents plaintiff\nadopts a\nseriously distorts the traditional\nsought were classified \"confidential\" pursu-\nrecords\"\nadversary nature of our legal system's form\nant to Executive Order 11652, 3 C.F.R. 339\nunder\nthe\nof dispute resolution[,]\" id. 157 U.S.App.\n(1974), 50 U.S.C. § 401 (Supp. IV 1974).\nthat Con-\nD.C. at 344, 484 F.2d at 824; and that,\nThis court reversed, emphasizing that plain-\norating\ninto\nalthough \"formal\" discovery under the Fed-\ntiff had also filed an affidavit, as provided\nFOIA.\nSee\neral Rules of Civil Procedure was not at\nfor by Rule 56(f), Fed.R.Civ.P., 3 stating his\nLissue,2 procedures would have to be institut-\nbelief that genuine issues existed as to\nneed\nnot\ned to provide FOIA plaintiffs information\nwhether the classification was properly ef-\nCuneo\nv.\nroughly equivalent to what they would ob-\nfected and indicating that he could not veri-\n188-89,\n553\ntain through such discovery. \"[C]ourts will\nfy that belief without discovery. The court\nJ.)\n(citing\nsimply no longer accept [from the defend-\nbased its holding on the language of Rule\nThey\nmust.\nCuneo,\n180\n14 5 U.S.C. § 552 (1976).\nter statement,\" Part III(A). infra; the breadth\n1365\n(plain-\n\"[a]fter\n2 The sole issue in Vaughn was whether the\nof the CIA's search for responsive documents\nal-\nought\nlitiga-\nagency had demonstrated by affidavit that the\nand the reasons for delay, Part IV, infra; and\nthe\nappoint-\ndocuments sought were exempt from disclo-\nwhether the agency's decision to disclose cer-\nthe\ncase.\"\nsure. Plaintiff simply contested the sufficiency\ntain materials was prompted by this lawsuit,\nEven\nif\nof the affidavit. 157 U.S.App.D.C. at 343, 484\nPart V. infra. In addition, plaintiffs contend\nthat the affidavits filed by the CIA fail ade-\nantially\npre-\nF.2d at 823. He did not attempt to bolster his\ncase by serving interrogatories on agency offi-\nquately to describe specific materials withheld\nlies\nwithin\n180\n\"cials, Rule 33, Fed.R.Civ.P., or by deposing\nand the reasons for nondisclosure, Parts II n.8\nCuneo,\nthem, Rules 30 and 31. Thus the question\nand III(B), Infra.\n1365-66;\nlegislative\nwhether discovery under the rules should be\n3. (f) When Affidavits Are Unavailable. Should\nexercise\npermitted was not involved in the case.\nit appear from the affidavits of a party oppos-\nthe\nwhether\nIn the present case, by contrast, plaintiffs\ning the motion that he cannot for reasons stat-\nopposi-\nturge that proper ventilation of the issues re-\ned present by affidavit facts essential to justify\nits\nengaged\nquires both discovery and more detailed affida-\nhis opposition, the court may refuse the appli-\nvits. Plaintiffs seek to discover the circum-\nU.S.App.\ncation for judgment or may order a continu-\nCIA's\nbe\nstances surrounding the creation, and posses-\nance to permit affidavits to be obtained or\nobdurate\nsion by the CIA, of the \"hearing transcript,\"\ndepositions to be taken or discovery to be had\nPart II, infra: the procedures and substantive\nor may make such other order as is just.\ncriteria observed in classifying the \"Hillenkoet-\n358\n607 FEDERAL REPORTER, 2d SERIES\n56(f),' the policies underlying the FOIA,\nthe CIA has made no claim that preparation\nfor 8\nand common sense:\nof the index mandated by Vaughn V. Rosen\nplaint\nFacts respecting the classification of the\nwould have been either overly burdensome\nThe f\nreports in question are solely in the con-\nor likely to disclose matters that should be\na tran\ntrol of the [defendant agency]. [Plain-\nkept secret. Moreover, the CIA offers nei-\nings (\ntiff] should be allowed to undertake dis-\nther evidence nor reason to find that a\nExper\ncovery for the purpose of uncovering\ncomplete bar to discovery was necessary to\non Ju\nfacts which might prove his right of ac-\nprotect its personnel from harassment.\nas th\ncess to the documents which he seeks.\nProper supervision of the discovery process,\ndocun\n164 U.S.App.D.C. at 284, 505 F.2d at 391.\nas described in the margin,5 could have\nrector\nIt is significant that there was no evidence\navoided such problems. Through indexing\nHouse\nin Schaffer bolstering plaintiff's claim that\nand discovery the adversary system would\n1948.'\nthe affidavit submitted by the defendant\nhave worked to maximize the probability\n\"Hille\nagency was either executed in bad faith or\nthat nonexempt information would be dis-\nMy\nwas somehow erroneous. Without dis-\nclosed, thus fulfilling the central purpose of\ntion 1\ncovery, plaintiff had no means of producing\nthe FOIA.6\nunava\nsuch evidence. Relying solely on his Rule\nIn sum, I submit that the grant of sum-\nspecif\n56(f) affidavit, the court remanded the case\nmary judgment to the CIA was premature.\nthe F\nwith instructions to permit plaintiff to un-\nThis position is reinforced by the factual\na \"cor\ndertake discovery relevant to whether the\nambiguity which pervades this record and\nrecord\nreports in question were properly classified\nwhich is exacerbated by the questionable\nreach\n\"confidential.\"\nlegal standard on which the court distin-\n\"the\nToday the court ignores both Schaffer\nguishes \"agency records\" from \"congres-\nscript\nand the \"overwhelming emphasis [the FOIA\nsional documents in an agency's possession.\"\ntached\nplaces] upon disclosure,\" which guided our\nreveal\nanalysis in Vaughn. 157 U.S.App.D.C. at\nand c\n343, 484 F.2d at 823. It does so in its zeal\nII. THE MAJORITY'S\nHouse\nto protect the CIA from the burden of\n\"CONTROL/PROPERTY\"\nprocessing meritless FOIA requests for vi-\nTEST\n7. The\ncy's\ntal security information. I believe that\nThe dispute in this case centers on two\ninfor\nsuch protection is available without eroding\ndocuments which the CIA admittedly pos-\nSour\nthe requirements of the FOIA. First of all,\nsesses and on the scope of the CIA's search\nF.2d\nwhe\n4. See note 3 supra.\nlege asserted by a party seeking to resist dis-\nis at\ncovery. Rule 26(c)(6). Thus discovery would\nTh\n5. The Federal Rules leave discovery in the\nneither have overly burdened the agency nor\nhow\nhands of the parties in the first instance. The\njeopardized its legitimate secrets, but would\nraise\ndistrict court is charged with supervising the\nhave provided both plaintiffs and the district\nhan\nprocess when disputes arise. Thus, if the CIA\ncourt the information necessary to make the\nrian\nbelieved plaintiffs' requests for discovery to be\nFOIA work.\nport\nburdensome or otherwise objectionable, it had\nthe\nseveral alternatives to a motion for summary\ngree\njudgment that were more consonant with the\n6. See generally S.Rep.No.813, 89th Cong., 1st\nspirit of the FOIA. It could, for example, have\nSess. (1965); H.R.Rep.No.1497, 89th Conge 2d\n8. 5\nserved objections to specific interrogatories on\nSess. (1966), U.S.Code Cong. & Admin.News\nthat\nplaintiffs, who then would have had to decide\n1966, p. 2418. The Senate Report states un-\nsolt\nequivocally that \"[i]t is the purpose of the\nrev\nwhether to move in district court to compel\ncla:\nanswers under Rule 37(a)(2). The CIA could\npresent bill\nto establish a general\nitself have moved in district court to terminate\nqui\nphilosophy of full agency disclosure unless in-\nAft\nor limit a deposition, Rule 30(d), or for a pro-\nformation is exempted under clearly delineated\nsel\ntective order, Rule 26(c). The grounds for such\nstatutory language\nS.Rep.No.813,\nJ.A\na protective order, like those for refusing to\nsupra, at 3. See also H.R.Rep.No.1497, supra,\ntio\nanswer specific questions, are generous. The\nat 3.\ndistrict court \"may make any order which jus-\nthe\ntice requires to protect a party from annoy-\nFor a brief discussion of the history and pur-\nrev\nance, embarrassment, oppression, or undue\nposes of the FOIA, see EPA V. Mink, 410 U.S.\nSe\nburden or expense.\nId. The district\n73, 79-80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).\nth.\ncourt may also, of course, recognize any privi-\nth\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n359\nCite as 607 F.2d 339 (1978)\nfor additional documents responsive to\nof 197 U.S.App.D.C., at 347 of 607 F.2d\nplaintiffs' request for \"legislative history.\"\n(emphasis added). This conclusion is\nThe first document is a photostatic copy of\nreached as a matter of law, thus eliminating\na transcript containing the minutes of hear-\nany justification for discovery, on the basis\nings conducted by the House Committee on\nof representations by CIA officials. The\nExpenditures in the Executive Department\nagency has stated by affidavit that the\non June 27, 1947. (Hereinafter referred to\ntranscript contains testimony taken in Ex-\nas the \"hearing transcript.\") The second\necutive Session; typewritten on both the\ndocument is entitled \"Statement of the Di-\ncover and first page of the transcript is the\nrector of Central Intelligence before the\nword \"Secret\"; the text reveals that the\nHouse Armed Services Committee-8 April\nstenographer and typist were sworn to\n1948.\" (Hereinafter referred to as the\nsecrecy; the CIA retains a copy of the\n\"Hillenkoetter statement.\")\ntranscipt for \"internal reference purposes\"\nMy brothers agree with the CIA's conten-\nonly. Id. at - of 197 U.S.App.D.C., at\ntion that the hearing transcript is simply\n347 of 607 F.2d, J.A. at 80.\nunavailable to the public, whether or not\nIn my view, the record in this case estab-\nspecifically exempted from disclosure by\nlishes as a matter of law that the hearing\nthe FOIA.' They find that the transcript is\ntranscript is an \"agency. record,\" and the\n& \"congressional document,\" not an \"agency\ncourt is empowered to order it withheld\nrecord,\" and is therefore wholly beyond the\nonly if it qualifies for nondisclosure under\nreach of the Act. The court reasons that\nFOIA exemptions one or three.8 First of\n\"the circumstances attending [the tran-\nall, the CIA claims to have had exclusive\nscript's] generation and the conditions at-\npossession of this document for more than\ntached to its possession by the CIA\" plainly\nthirty years.' More importantly, the CIA\nreveal that it \"remains under the control\nacknowledges that it employs this informa-\nand continues to be the property of the\ntion in interpreting its organic legislation 10\nHouse of Representatives.\" Maj. op. at -\n-i. e., in making decisions with respect to\n7. This is our first occasion to consider an agen-\nuntil the CIA files an itemized description of its\ncy's claim that the FOIA does not apply to\ncontents. See generally id.; Part III(B) infra.\n$ information in its possession. Compare, e. B.,\nSoucie V. David, 145 U.S.App.D.C. 144, 448\n9. Although no explanation of \"agency records\"\nF.2d 1067 (1971), in which the issue was\nIs provided either in the FOIA itself or in the\nwhether the Office of Science and Technology\nlegislative history, the Justice Department has\nis an \"agency\" for purposes of the FOIA.\nsuggested that the Act requires disclosure of\nThe Court of Appeals for the Tenth Circuit,\n\"records in being and in the possession or con-\nhowever, has considered a claim similar to that\ntroi of an agency.\" R. Clark, Attorney Gener-\nraised here by the CIA. In Cook V. Willing-\nai's Memorandum on the Public Information\nham, 400 F.2d 885 (10th Cir. 1968) (per cu-\nSection of the Administrative Procedure Act 23\nriam), the court decided that presentence re-\n(1967), reprinted in Freedom of Information\nports are not \"agency records\" even though in\nthe possession of prison authorities. I disa-\nAct Source Book, S.Rep.No.82, 93d Cong., 2d\ngree. See note 13 infra.\nSess. 222 (1974) (emphasis supplied) (herein-\n&, 5 U.S.C. §§ 552(b)(1), (3) (1976). I submit\nafter \"Attorney General's Memorandum\").\nThis interpretation supports plaintiffs' position\nthat the exemption one issue cannot be re-\nthat possession suffices and is consistent with\nsolved on this record since the CIA has failed to\nthe general view advanced here that any at-\nreveal whether the procedures it followed in\n,Classifying the transcript comport with the re-\ntempt by the courts to define \"agency records\"\nquirements of Executive Order No. 11652. The\nmust be shaped primarily by the policy of full\nAffidavit of George L. Cary, Legislative Coun-\ndisclosure underlying the Act. See notes 6\nsel of the CIA (hereinafter \"Cary Affidavit\"),\nsupra and 12 infra.\nJA at 81, states only that a \"Secret\" classifica-\ntion marking has been affixed on the face of\n10. The Cary Affidavit states that the agency\nthe transcript. It does not mention the other\nuses the transcript \"in conjunction with con-\nrequirements contained in the Executive Order.\ngresslonal action on legislation dealing with the\nSee generally Part III(A) infra. I suggest also\nestablishment of the Office of the Director of\nthat neither exemption one nor exemption\nCentral Intelligence, the Central Intelligence\nthree can be held applicable to the transcript\nAgency and its functions.\" J.A. at 80.\n360\n607 FEDERAL REPORTER, 2d SERIES\npolicy and operations. The Act does not\ncies that obviously become \"agency records\"\ntion 3 cas\nLion is wh\ndefine \"agency records.\" But the House\nin the ordinary course. See, e. g., Wash-\nand Senate reports reveal that the funda-\nington Research Project, Inc. V. HEW, 164\nagency to\nmental purpose of the FOIA was to open\nillustrate,\nU.S.App.D.C. 169, 504 F.2d 238 (1974)\nadministrative policy and operations to the\n(grant application submitted to National Im\"\namount unlawful of\nlight of public scrutiny.¹\nstitute of Mental Health by noncommercial\nin any inc\nI also find the court's \"control property\"\nresearch scientist); Irons V. Gottschalk, 369\nscription (\ntest unpersuasive. We are not told what it\nF.Supp. 403 (D.D.C.1974) (patent applica-\nnot \"agen\nmeant by congressional \"control\" over a\ntions). Nor can the court rely on the view.\nare agend\ndocument in an agency's possession; or in\nthat because Congress may have somehow\nunder ex\nwhat sense such a document can be con-\nforbidden the CIA to disclose the transcript,\nlysts & A\nsidered congressional \"property.\" The fact\nthus exercising \"control\" over its contents,\nvice, 164\nthat Congress is a non-agency does not pre-\nthe transcript cannot be considered an\nclude a document or copy of a document it\n\"agency record.\" \"Control\" in this sense\n(1974).\ngoes to the question whether a document is\nIt appe\nhas created from ever qualifying as an\n\"agency record.\" Federal agencies regular-\nexempt from disclosure-not to whether it\nment the\nly receive documents created by non-agen-\nis an \"agency record.\" 12 In every exemp-\nconcepts\nThe cour\n11. The reports indicate that the FOIA was in-\nF.2d 1067, 1076-77 (1971); Bristol-Myers Co. V.\nwould be\ntended to strengthen the Public Information\nFTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935,\nterest in,\nsection of the Administrative Procedure Act, 5\n938 (1970); American Mail Line, Ltd. V. Gulick,\nU.S.C. § 1002 (1964), which was \"drawn upon\n133 U.S.App.D.C. 382, 385, 411 F.2d 696, 699\ntents of 1\nthe theory that administrative operations and\n(1969); H.R.Rep.No.1497, 89th Cong., 2d Sess.\nthe conte\nprocedures are public property which the gen-\n1-2, 5-6, 8-9, 11 (1966); S.Rep.No.813, 89th\ntranscript\neral public, rather than a few specialists or\nCong., 1st Sess. 3-6, 8, 10 (1965). Congress\nlobbyists, is entitled to know or have ready\nreplaced them with a general requirement that\ncongressi\nmeans of knowing with definiteness and assur-\nall \"records\" be disclosed, 5 U.S.C. § 552(a)(3)\nat odds w\nance.\" H.R.Rep.No.1497, 89th Cong., 2d Sess.\n(1976), offset by nine-and only nine-catego-\nthe Hille\n3 (1966) (quoting from H.R.Rep.No.752, 79th\nries of privileged material. Id. § 552(b)(1)-(9).\nrecord.\"\nCong, 1st Sess. 198 (1945), U.S.Code Cong. &\nTo avoid the creation of new loopholes, Con-\nAdmin.News 1966, pp. 2418, 2420. See also\ngress expressly limited the grounds for nondis-\nD.C., at\nS.Rep.No.813, 89th Cong., 1st Sess. 8 (1965)\nclosure to those specified in the exemptions:\nscript an\n(\"[T]he very purpose for which [the Public In-\n\"This section does not authorize withholding\ntain testi\nformation Section] was intended [was to guar-\ninformation or limit the availability of records\nantee] the public's right to know the operations\nto the public, except as specifically stated in\nligence d\nof its government.\"); Dept. of the Air Force V.\nthis section.\" Id. $ 552(c) (emphasis supplied).\n13. The\nRose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48\nMy colleagues justify their view of congres-\n\"frivolo\nL.Ed.2d 11 (1976); SOC Development Corp. V.\nsional \"control\" on the theory that \"Congress\nis not a\nMathews, 542 F.2d 1116 (9th Cir. 1976).\nhas broad powers to keep its documents secret\nn.47. Il\nMy brothers would facilitate the flow of in-\n[and does not] waive[ its\nlooks ti\nformation between Congress and the Executive\nprerogatives of confidentiality\" when it trans-\nbut also\nfers a \"secret\" document to an agency. Maj.\nbranch, maj. op. at - of 197 U.S.App.D.C., at\nstand tl\nop. at n.48.\n346 of 607 F.2d, at the prohibitive cost of\nI think it is fair to say that the court creates a\nquestio\nperpetuating the \"secret law\" we have con-\nrecord'\ntenth exemption for documents subject to what\ndemned so frequently. See e. B., Tax Analysts\ndocume\nit terms \"congressional prerogatives of confi-\n& Advocates V. IRS, 164 U.S.App.D.C. 243, 246,\ndentiality.\" To be sure, there can be no doubt\nSurely,\n505 F.2d 350, 353 (1974); Cuneo V. Schlesinger,\nwhethe\nabout the existence of congressional power to#\n157 U.S.App.D.C. 368, 173, 484 F.2d 1086, 1091\nmaintain the secrecy of congressional proceed-\nscript\nn.13 (1973).\nbranch\nings, see U.S.Const. art. 1, $ 5, and thus to\n12. This view of congressional \"control\" derives\npreserve the secrecy of documents in which the\nThat\nfrom the history of the FOIA as well as its plain\nminutes of those proceedings are transcribed.\nperple\nlanguage. Before the FOIA was enacted, the\nThe question in this case, however, is not\nflected\ndisclosure provisions of the Administrative\nwhether such a power exists, but whether Con-\nham,\nProcedure Act allowed agencies to withhold\ngress continues to exercise it after transferring\nriam).\ninformation \"in the public interest,\" or \"for\na document to an agency on an ostensibly per-\nsenter\ngood cause shown,\" or on the ground that the\nmanent basis.\nties V\nperson seeking the record was not \"properly\n1 read the FOIA as an unequivocal declara-\n\"was\nand directly concerned.\" 5 U.S.C. $ 1002\ntion by Congress that documents which have\nand t]\n(1964). The FOIA was designed specifically to\nbecome part of the administrative process are\nof th\neliminate these discretionary standards. Sou-\nsubject to full disclosure unless specifically ex-\nevent\ncie V. David, 145 U.S.App.D.C. 144, 153-54, 448\nempted.\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n361\nCite as 607 F.2d 339 (1978)\ntion 3 case, for example, the ultimate ques-\nsecretly before Congress. J.A. at 79-82.\nords\"\ntion is whether Congress has forbidden the\nThere is no logical reason to believe, and\nWash-\nagency to disclose the records sought. To\nnone has been suggested, that Congress\nV, 164\nMustrate, 26 U.S.C. § 7213(a)(1) makes it\nwould have an interest in controlling the\n(1974)\nmlawful \"to divulge to any person the\ntestimony in one but not the other. The\nal In-\namount of income\nset forth\ntranscript contains, in addition to testimo-\nercial\nany income return\nThis pro-\nny, questions and comments by committee\nk, 369\nscription does not mean that tax returns are\nmembers. Perhaps, then, the testimony\nplica-\nspot \"agency records.\" Rather, tax returns\nshould be considered the property of the\nview\nare Agency records that must be withheld\nExecutive branch, where it originated, and\nnehow\nBader exemption 3. See, e. g., Tax Ana-\nthe comments the property of Congress. If\nscript,\nlysts & Advocates V. Internal Revenue Ser-\nso, to the extent the transcript consists of\nitents,\nvice, 164 U.S.App.D.C. 243, 505 F.2d 350\nnonexempt testimony it should be disclosed\ned an\n1974).\nunder the majority's own rationale. 13 The\nsense\nIt appears that the court would supple-\nonly further difference between the two\nient\nis\nment the element of \"control\" with other\ndocuments that is even arguably material is\nther\nit\nconcepts having to do with \"property.\"\nthat the copy of the Hillenkoetter state-\nxeTp-\nThe court's ultimate position, as I see it,\nment which the CIA possesses was appar-\nCo.\nV.\nwould be that Congress has a property in-\nently typed by agency employees, while the\n935,\nterest in, as well as control over, the con-\nCIA's copy of the transcript was tran-\nGulick,\nitents of the transcript, the paper,on which\nscribed and typed by employees of Con-\n699\nSess.\nthe contents are typed, and any copy of the\ngress. As I have indicated, the origin of a\n89th\nTranscript. But so sweeping a notion of\npiece of paper is simply not dispositive of\nongress\nthat\ncongressional control and property is plainly\nthe question whether it qualifies as an\n2(a)(3)\nat odds with the majority's concession that\n\"agency record.\"\ncatego-\nthe Hillenkoetter statement is an \"agency\nIn any case, even assuming the \"con-\n(1)-(9).\nCon-\nrecord.\" Maj. op. at - of 197 U.S.App.\ntrol/property\" standard is the correct one,\nondis-\nD.C., at 348 of 607 F.2d. Both the tran-\nfactual ambiguities in the record would pre-\nptions:\nscript and the Hillenkoetter statement con-\nclude summary judgment. If Congress\nolding\necords\ntestimony originally prepared by intel-\ndoes, generally speaking, exert control over,\nin\nligence officials and subsequently delivered\nand maintain property interests in, docu-\nngres-\nThe majority asserts that this argument is\ncourt can be said to have a \"property\" interest\nngress\nfrivolous\" because \"the [h]earing [t]ranscript\nin a presentence report since such reports are\nsecret\nnot an agency record\nMaj. op. at\nprepared for that court by an arm of that\n60.47. In so doing the majority not only over-\ncourt-the United States Probation Office. See\ntrans-\nlooks the \"property\" element of its own test,\nMaj.\nThat also assumes its conclusion. As I under-\nRule 32(c)(1), Fed.R.Crim.P. Since the con-\ntents of a presentence report originate with the\nstand the legal standard the court proposes, the\nquestion whether a document is an \"agency\ncourts, however, not with the Executive\na\nwhat\nrecord\" requires consideration of whether the\nbranch, such reports would appear distinguish-\nconfi-\ndocument is the \"property\" of an agency.\nable under the majority's standard from the\ndoubt\nSurely, then, the majority must consider\ntestimony contained in the hearing transcript at\nwhether the testimony contained in the tran-\nissue here.\nto\nceed-\nMilleript branch. is the \"property\" of the Executive\nIn any event, I believe that Cook was wrong-\nly decided. The brief opinion in that case fails\nto\nThat the majority fails to consider fully the\nto clarify exactly how the sentencing court ex-\nthe\nribed.\nPerplexity of its \"property\" rationale is re-\nercises control over a document in the posses-\nnot\n\"ham, 400 F.2d 885 (10th Cir. 1968) (per cu-\nLected also by its reliance on Cook V. Willing-\nsion of prison authorities. Moreover, the opin-\nion fails to envision the possibility that the\nCon-\nslam). In that case the court held that a pre-\nsentencing court could ever relinquish such\nper-\nsentence ties report in the hands of prison authori-\ncontrol. In my view, once the prison authori-\nties had possession of the report for use in\nwas was not an \"agency record\" because it\nhave\nFund thereafter remains in the exclusive control\nmade for the use of the sentencing court\nconnection with administrative decisions (e. B.,\nparole release), the report became a quintes-\nare\nof that court despite any joint utility it may\nsential \"agency record.\" See note II supra\nex-\nand accompanying text.\nserve.\" Id. Perhaps the sentencing\n362\n607 FEDERAL REPORTER, 2d SERIES\nments possessed by federal agencies, the\ntion of the transcript's secrecy to be crucial.\nA\nmajority's test generates a need to as-\nEven without discovery plaintiffs have\nIr\ncertain the methods by which such control\ndemonstrated that the Church Committee\ncour\nis exercised and relinquished, and the\nhas published portions of the transcript.\"\ndocu\nmeans by which such property interests are\ncreated and extinguished. In this case dis-\nIII. THE CIA'S CLAIMS OF\ntain\ncovery is necessary specifically to determine\nEXEMPTION\nit w\nwhether Congress or the committee that\nU.S\nconducted the hearings ever instructed the\nThe majority adopts the CIA's declara-\n(que\nCIA to preserve the secrecy of the tran-\ntion by affidavit that the withheld por-\n2d\nscript, and, if so, for how long. Apparently\ntions 16 of the Hillenkoetter statement are\nDep\nthe transcript itself contains no such ex-\nexempt from disclosure as a matter of law\nat 1\npress instruction, and the CIA concedes that\non grounds of national security. This result\ndete\nthe source of the \"Secret\" classification is\nis reached by two separate paths-directly,\non 1\nunknown. J.A. at 80. The fact that the\nunder FOIA exemption one, 5 U.S.C.\ndavide\ncommittee met in Executive Session serves\n§ 552(b)(1) (1976), and indirectly, by incor-\nthe\nonly to raise further questions concerning\nporating into FOIA exemption three, id.,\nmen\nthe nature of the \"longstanding practice\"\n§ 552(b)(3), the nondisclosure provisions of\nWit\ngoverning secrecy of such sessions to which\nthe National Security Act of 1947, 50 U.S.C.\nmer\nthe majority refers. Maj. op. at n.45.14\n§ 403(d)(3), and the Central Intelligence\nder,\nAlso, discovery is necessary to determine\nAgency Act of 1949, 50 U.S.C. § 403g. See\ncati\nwhether, in the thirty years during which\ngenerally Maj. op. at\nof 197 U.S.\nT\nthe CIA has possessed the transcript, it has\nApp.D.C., at 348-352 of 607 F.2d. The\nasse\never acted inconsistently with congressional\nmajority may well be correct in concluding\nter\n\"control,\" as by disclosing the contents of\nthat disclosure of the withheld material\nheld\nthe transcript to other agencies or individu-\nwould threaten our national security. Con-\nclass\nals without seeking congressional authority.\ngress, however, has unambiguously ex-\necut\nFinally, plaintiffs should be permitted to\npressed its intention that such determina-\nof\npursue further the question whether Con-\ntions shall be made de novo. 5 U.S.C.\ncla\ngress itself has explicitly or implicitly indi-\n§ 552(a)(4)(B) (1976).¹⁷ The affidavits sub-\nse]\ncated that it no longer considers preserva-\nmitted by the CIA are no substitute.\nclose\ngrown\n14. The majority acknowledges that H.R.Rule\n15. The Church Committee Report, Foreign and\n§ :\nXI(1)(k)(7), which governs disclosure of testi-\nMilitary Intelligence, Final Report of the Select\nfor\nmony taken in Executive Session of the House\nsul\nCommittee to Study Governmental Operations\nof Representatives, did not exist in 1947, when\nals\nwith respect to Intelligence Activities, S.Rep.\nthe hearings in question were conducted. Maj.\nand\nNo.94-755, 94th Cong., 1st Sess., pt. 1 (1976),\nop. at n.45. The majority states, however, that\nex\nrefers to or quotes from the hearing transcript\n\"the Rule simply formalized long-standing\nme\nat 72n. 6; 129n. 2, 7; 136n. 32-34; 138n. 41a;\npractice\n[requiring that] 'all testimo-\nof\n480n. 17, 487-488n. 53; and 488n. 56-57.\nny taken in executive hearings\nbe\nwl\nsecret and\nnot be released\nbe\n16. The CIA has deleted approximately 20%, or\nwithout the approval of a majority of the sub-\n$\ncommittee.\" Id. (quoting from S.Rep.No.5,\n23 pages, of the Hillenkoetter statement. Brief\nRe\n81st Cong., 1st Sess., 3-4 (1949)).\nfor the Government at 21.\n18.\nThe \"practice\" to which the court refers is\nclose\nambiguous at best. For one thing, the court\n17. Congress made its will clear in Pub.L.No.93-\nrelies on practice in the Senate, and the House\n502, 88 Stat. 1561 (1974), which amended the\nFOIA in part to overrule the decision by the\n-\nmay have functioned differently. And the\npractice of either branch of Congress may have\nSupreme Court in EPA V. Mink, 410 U.S. 73, 93\n-\nprovided for disclosure without approval by\nS.Ct. 827, 35 L.Ed.2d 119 (1973). In Mink the\n1\n-\ncommittee after a specified duration. More-\nCourt had interpreted 5 U.S.C. $ 552(b)(1),\n5 1\nover, assuming Senate practice is relevant, the\nwhich exempted from disclosure those matters\n\"specifically required by Executive order to be\n19.\ncourt should consider whether disclosure of\nportions of the transcript by the Church Com-\nkept secret in the interest of the national de-\nter\nmittee, see note 15 infra, might substitute for\nfense or foreign policy,\" not to allow judicial\nthat\napproval by the committee that originally con-\nreview of Executive security classifications and\nexi\nTh\nducted the hearings.\naccordingly not to allow in camera inspection\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n363\nCite as 607 F.2d 339 (1978)\nA. Exemption One\nis the Order presently in force. See 3\nIn the case of exemption one the district\nC.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV\ncourt must determine the propriety of a\n1974). Perhaps discovery pertaining to the\ndocument's classification according to \"both\nvalidity of the original classification would\nprocedural and substantive criteria con-\nbe unnecessary if reclassification under Ex-\ntained in the Executive Order under which\necutive Order No. 11652 had been properly\nit was classified.\" Zweibon V. Mitchell, 170\neffected. The district court, however, was\nU.S.App.D.C. 1, 49, 516 F.2d 594, 642 (1975)\nplainly in error. Section 4(A) of the Execu-\n(quoting from H.R.Rep.No.1380, 93d Cong.,\ntive Order requires that classified material\n2d Sess!, 12 (1974)); see also Halperin V.\n\"show on its face its classification and\nDepartment of State, 184 U.S.App.D.C. 124\nwhether it is subject to or exempt from the\nat 128, 565 F.2d 699 at 703 (1977). Such\nGeneral Declassification Schedule. It shall\ndeterminations could not have been made\nalso show the office of origin, the date of\non the record in this case because the affi-\npreparation and [the date of] classification\ndavit submitted by the CIA fails to reveal\n\" Excepting that the word \"Se-\nthe date on which the Hillenkoetter state-\ncret\" and the date of preparation appear on\nment was originally classified. J.A. at 81.\nWithout discovery, the district court could\nthe face of the Hillenkoetter statement,\nmerely speculate about which Executive Or-\nJ.A. at 80, there is no indication in the\nder, if any,\" governed the original classifi-\nrecord that these procedures were followed.\ncation.\nWe said recently in Halperin V. Depart-\nThe district court apparently relied on an\nment of State, 184 U.S.App.D.C. 124, 565\nasserted reclassification of the Hillenkoet-\nF.2d 699 (1977), that the government can-\nter statement in concluding that \"the with-\nnot claim a statutory exemption from the\nheld portions\nhave been properly\nFOIA if it has failed to comply with the\nclassified according to the provisions of Ex-\nprocedures necessary to give such exemp-\necutive Order No. 11652,\" J.A. at 189, which\ntion effect.2\nof a contested document bearing a security\nPresident Truman. See Executive Order No.\nclassification so that nonsecret matter could be\n10290, 3 C.F.R. 789 (1953). The Office of War\nseparated from secret matter and ordered dis-\nInformation, however, had in 1942 issued a\nclosed. 410 U.S. at 81-84, 93 S.Ct. 827. Con-\ngovernment-wide regulation dealing with se-\ngress responded by amending the language of\ncurity classification under the authority of Ex-\n1 552(b)(1), see note 18 infra, to provide clearly\necutive Orders 9103 and 9182. See Office of\nfor judicial review of both the procedural and\nWar Information Regulation No. 4, issued Sept.\nsubstantive propriety of the classification. It\n28, 1942, amended, Nov. 13, 1942. See general-\nalso specified that where the documents sought\nly H.R.Rep.No.93-221, 93d Cong., 1st Sess.,\nare withheld on the basis of any of the nine\nexemptions, \"the court shall determine the\n4-14 (1973). This regulation established both\nmatter de novo, and may examine the contents\nsubstantive criteria and procedural require-\nof such agency records in camera to determine\nments. See id. at 7. Thus, assuming the Hil-\nwhether such records or any part thereof shall\nlenkoetter statement was classified originally in\nbe withheld\n1948, discovery was necessary to determine\n$ $ 1(b)(2), 88 Stat. 1562 (1974); Pub.L.No.93-502, see also H.R.\nwhether these substantive criteria and proce-\nRep.No.1380, 93d Cong., 2d Sess., 2, 12 (1974).\ndural requirements were followed.\n18. FOIA's first exemption Immunizes from dis-\n20. See also Schaffer V. Kissinger, supra.\nclosure those matters that are\nIn Halperin, we did not hold that the docu-\n(A) specifically authorized under criteria\nment in question necessarily had to be dis-\nestablished by an Executive order to be kept\nclosed to plaintiff. Rather, we remanded the\nsecret in the interest of national defense or\ncase to the district court for a determination of\nforeign policy and (B) are in fact properly\nclassified pursuant to such Executive order.\nwhether disclosure would \"do grave damage to\n5 U.S.C. $ 552(b)(1) (1976).\nthe national security\nId, 184 U.S.\n19. The record reveals only that the Hillenkoet-\nApp.D.C. at 131, 565 F.2d at 706. The decision\nto remand was made reluctantly:\nter statement was prepared in April, 1948. At\nHaving failed to follow the procedures es-\nthat time, there was no Executive Order in\ntablished by their own branch of government,\nexistence governing all security classifications.\nThe first such Order was issued in 1950 by\nappellants ask us in effect to save them from\nthe consequences of that failure by providing\n364\n607 FEDERAL REPORTER, 2d SERIES\nB. Exemption Three\nment of the Air Force V. Rose, 425 U.S. 352,\nIn the case of exemption three the dis-\n374, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and\ntrict court must determine whether the ma-\nplaces the disclosure decision squarely in\nterial withheld is specifically exempted\nthe hands of the CIA.\"\nfrom disclosure by statute. I have no quar-\nOur decisions establish that in national\nrel with the court's holding that 50 U.S.C.\nsecurity cases as in all others, summary\n§§ 403(d) and 403g specifically require that\njudgment is proper without discovery or in\n\"intelligence sources and methods\" be kept\ncamera inspection only if the agency has\nsecret. Maj. op. at\nof 197 U.S.\nsubmitted an itemized index that \"subdi-\nApp.D.C., at 349-350 of 607 F.2d. I be-\nvide[s] the document under consideration\nlieve the court is mistaken, however, in\ninto manageable parts cross-referenced to\neschewing \"discovery or in camera inspec-\nthe relevant portion of the Government's\ntion to test for the presence of segregable,\njustification.\" Vaughn V. Rosen, supra, 157\nnon-exempt material\" on what is essentially\nU.S.App.D.C. at 347, 484 F.2d at 827. See\nthe ground that \"the Agency has already\nalso Weissman V. CIA, 184 U.S.App.D.C.\nsegregated and released 80% of the Hillen-\n117, 123, 565 F.2d 692, 698 (1977) (as amend-\nkoetter statement to plaintiffs.\" Id. at\ned, April 4, 1977); Phillippi V. CIA, 178\nn.65. This rationale violates the court's\nU.S.App.D.C. 243 at 247, 546 F.2d 1009, at\nstatutory responsibility to undertake de\n1013 (1977). Cf. Mead Data Central, Inc. V.\nnovo review for \"reasonably segregable ma-\nDepartment of the Air Force, 184 U.S.App.\nterial,\" 5 U.S.C § 552(b) (1976); Depart-\nD.C. 350, at 358-360, 566 F.2d 242 at 250-\nan exemption the Congress did not create.\npossibly have given the requisite de novo con-\nThe power of a court to refuse to order the\nsideration to the question of substantive classi-\nrelease of information that does not qualify\nfiability.\nfor one of the nine statutory exemptions ex-\nists, if at all, only in \"exceptional circum-\n21. FOIA's third exemption immunizes from dis-\nclosure those matters that are\nstances in which a court could fairly con-\nclude that Congress intended to leave room\nspecifically exempted from disclosure by\nfor the operation of limited judicial discre-\nstatute\nprovided that such statute\ntion.\" The need for this restriction on the\n(A) requires that the matters be withheld\npower of the courts is apparent here. A\nin such a manner as to leave no\nbroad judicial power to refuse to order dis-\ndiscretion on the issue, or (B) establishes\nclosure of non-exempt information that a\nparticular criteria for withholding or refers to\ncourt feels would damage the national inter-\nparticular types of matters to be withheld.\nest could obviously operate to frustrate the\n5 U.S.C. § 552(b)(3) (1976).\nrequirements of FOIA.\n22. The court asserts that \"[e]xemption 3 differs\nId. 184 U.S.App.D.C. at 131, 565 F.2d at 706\nfrom other FOIA exemptions in that its applica-\n(citations omitted). Narrowly circumscribing\nits discretion, we directed the district court to\nbility depends less on the detailed factual con-\ntents of specific documents\nbe \"guided by an exacting standard similar to\nMaj.\nthat suggested in Near V. Minnesota, [283 U.S.\nop. at - of 197 U.S.App.D.C., at 350 of 607\n697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)].\"\nF.2d. On the contrary, the applicability of this\nHalperin, 184 U.S.App.D.C. at 132, 565 F.2d at\nexemption, like any other, depends entirely on\n707. See also Tax Analysts & Advocates V.\nwhether the factual contents of the particular\nIRS, 164 U.S.App.D.C. 243, 248, 505 F.2d 350,\nmaterials withheld are such that the statutory\n355 (1974); Getman V. NLRB, 146 U.S.App.\ncriteria for nondisclosure are satisfied. The\nD.C. 209, 450 F.2d 670, 678 (1971); Soucie V.\nsole difference between exemption three and\nDavid, 145 U.S.App.D.C. 144, 154, 448 F.2d\nother FOIA exemptions is that in the case of\n1067, 1077 (1971).\nexemption three, these criteria are not provided\nIn this case, as in Halperin, since the agency\nby the FOIA itself but by other statutes. For\nfailed in reclassifying the Hillenkoetter state-\nexample, in the present case the relevant crite-\nment to follow the procedures necessary to\nria are established by the National Security Act\ngive exemption one effect, there is no need to\nof 1947, 50 U.S.C. § 403(d)(3), and the Central\naddress the question whether the reclassifica-\nIntelligence Act of 1949, 50 U.S.C. $ 403g. I\ntion satisfied the substantive criteria contained\nshould note that the court appears to realize as\nin Executive Order No. 11652. I should note,\nmuch, and later states that the \"withheld mate-\nhowever, that for want of an itemized index of\nrial [must be included] within [the exempting]\nthe contents of the Hillenkoetter statement, see\nstatute's coverage.\" Maj. op. at - of -\nPart III(B) infra, the district court could not\nU.S.App.D.C., at 350 of 607 F.2d.\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n365\nCite as 607 F.2d 339 (1978)\n252 (1977). Such an index, as I discussed\ngraphs in the [Hillenkoetter] statement.\"\nearlier, \"can\nbe subjected to crit-\nBrief for Appellants at 33. For want of an\nicism by the party seeking the document.\nitemized index, it is impossible to determine\nIf in camera examination of the document\nwhether all nondisclosed portions of the\nis still necessary, the court will at least have\nstatement have been described, much less\nthe benefit of being able to focus on the\nproperly withheld.\nissues identified and clarified by the adver-\nsary process.\" Phillippi V. CIA, supra, 178\nIV. THE CIA'S SEARCH FOR\nU.S.App.D.C. at 247, 546 F.2d at 1013;\nRESPONSIVE DOCUMENTS\nVaughn V. Rosen, supra, 157 U.S.App.D.C.\nThe court refuses to permit plaintiffs to\n346-48, 484 F.2d at 826-828. See also\nconduct discovery pertinent to the scope of\nS.Rep.No.93-854, 93d Cong., 2d Sess., 14-15\nthe CIA's search for \"legislative history\" on\n(1974).\nthe ground that affidavits submitted by the\nThe affidavit filed here by the CIA, quot-\nagency reveal as a matter of law that the\ned in part in the court's opinion at 21,\nsearch was thorough. The majority empha-\nplainly fails to supply the information nec-\nsizes the assertion by the agency's Informa-\nessary to facilitate the adversary process\ntion and Privacy Coordinator that the \"CIA\nand de novo review. First, the affidavit\n'interpreted [plaintiffs'] request broadly\nspeaks for the most part only of intelligence\nenough to ensure that [it] would locate all\n\"devices,\" \"sources,\" \"methods,\" and \"oper-\ndocuments within the scope of the request.\"\nations.\" Essentially it parrots the language\nMaj. op. at - of 197 U.S.App.D.C., at\nof the exempting statutes, 50 U.S.C.\n353 of 607 F.2d; J.A. at 78. The majori-\n§§ 403(d)(3) (\"intelligence sources and\nty states that \"the Agency's good faith\nmethods\") and 403g (intelligence \"func-\nwould not be impugned unless there were\ntions\"), rather than providing the detailed\nsome reason to believe that [additional re-\ndescription the \"requesting party [needs] to\nsponsive] documents could be located with-\npresent its case effectively,\" Mead Data\nout an unreasonably burdensome search.\"\nCentral, Inc. V. Dept. of the Air Force, 184\nMaj. op. at --- of 197 U.S.App.D.C., at\nU.S.App.D.C. 350 at 359, 566 F.2d 242 at 251\n353 of 607 F.2d. Finding that the CIA\n(1977); Vaughn V. Rosen, supra, 157 U.S.\ndid, in fact, act in good faith, the court\nApp.D.C. at 343-44, 484 F.2d at 823-24, 828,\nrefuses to reach plaintiffs' contention that\nand a reviewing court requires to make an\nthe agency's definition of \"agency records,\"\nindependent evaluation of an agency's ex-\n32 C.F.R. § 1900.3(g) (1976),24 is unduly\nemption claims.\" Second, as plaintiffs\nnarrow and may have served as an imper-\npoint out, the affidavit \"makes no effort to\nmissible basis for withholding otherwise re-\nmatch its assertions to given pages or para-\nsponsive documents. Maj. op. at\n23. My colleagues find that the affidavit \"could\ncially in national security cases, for the District\nnot have been much more detailed without\nCourt to inspect withheld documents, or at\n\"compromis[ing] the secret nature of the infor-\nleast a reasonable sample thereof, in camera.\nmation.\" Maj. op. at - of 197 U.S.App.\nBut compare Weissman V. CIA, supra, 184 U.S.\nD.C., 352 of 607 F.2d (quoting from Vaughn V.\nApp.D.C. 122, 565 F.2d at 697 (\"in camera\nRosen, supra, 157 U.S.App.D.C. at 346-47, 484\nproceedings are particularly a last resort in\nF.2d at 826-27). This may be true. An affida-\n'national security' situations.\").\nvit couched essentially in the language of the\nexempting statute, however, is plainly of no\n24. The CIA's definition excludes certain (1)\nmore usefulness to plaintiffs or the court than\n\"[i]ndex, filing, and museum documents;\" (2)\nan affidavit simply declaring that the withheld\nmaterial qualifies for a particular exemption.\n\"[r]outing and transmittal sheets and notes;\"\nIf for some reason agencies must be especially\n(3) \"[b]ooks, newspapers, magazines, and simi-\nguarded in describing withheld material in so-\nlar publications;\" (4) \"[d]ocuments and rec-\ncalled \"national security\" cases, the indexing\nords prepared or originated by [other]\nrequirement may not provide an adequate\nagenc[ies];\" and (5) \"[d]ocuments and records\nmeans in such cases of ensuring that the adver-\nfurnished by foreign governments\non\nsary process works and of facilitating de novo\nthe understanding\n[that they be] kept\nreview. It may therefore be necessary, espe-\nin confidence.\"\n366\n607 FEDERAL REPORTER, 2d SERIES\nof 197 U.S.App.D.C., at 355-356 of 607\nder-inclusive.\" Such discovery, of course,\n19\nF.2d.\nmight have led the parties to agree on an\ndo\nThe court may well be correct in conclud-\nappropriate search. At a minimum, such\nde\ning that the CIA has acted in good faith,\ndiscovery would have enabled plaintiffs to\nhe\nand that its search was thoroughly respon-\nreformulate their request to eliminate con-\nty\nsive to plaintiffs' request. My disagree-\nfusion and the possibility of future lawsuits.\nag\nment, again, concerns not the substance but\nAlso, such discovery would have revealed\ndo\nthe timing of the judgment in favor of the\nwhether the persons conducting the search\nev\ndid in fact withhold otherwise responsive\ndis\nagency.\nAs I understand plaintiffs' position, al-\ndocuments on the basis of the CIA's defini-\nthough they do raise questions about the\ntion of \"agency records.\" If so, the ques-\nCIA's good faith,\" the real issue here con-\ntion would arise whether that definition is\ncerns the scope the agency attributed to the\npermitted by the FOIA.\nma\nterm \"legislative history.\" Clearly, wheth-\nse\ner or not the CIA acted in good faith, its\nV. ATTORNEY'S FEES\nter\nunderstanding of \"legislative history\"\nPlaintiffs claim to be entitled to an\nna\nshaped its search for responsive documents.\naward of attorney's fees on the ground that\ntic\nIt is not enough for the CIA simply to state\nthe CIA produced several documents only\n308\nthat it \"interpreted the request broadly.\"\nafter this litigation was instituted.\" The\nwith\nWithout discovery of the precise definition\ncourt rejects this claim in part because\ntor\nemployed by the persons who conducted the\nplaintiffs have not shown the required\nreg\nsearch, plaintiffs were in no position to\n\"causal nexus between their litigation and\nnot\nargue effectively that the search was un-\nthe CIA's disclosure.\" Maj. op. at - of\nple\n25. Plaintiffs point out that on March 10, 1976,\nGovernment employee to locate the requested\n-\nsix weeks after their complaint had been filed\nrecords.\" S.Rep.No.813, 89th Cong., 1st Sess.\nin district court and nearly five months after\n8 (1965). See also Sears V. Gottschalk, 357\ntheir original FOIA request had been filed with\nF.Supp. 1327 (D.C.Va.1973). To require more\nthe CIA, they received notification that the\n(\nspecificity would be futile, particularly where,\nagency had conducted a subsequent search and\nas here, the requestor does not know whether\n\"recently identified\" additional responsive doc-\nI\nor to what extent responsive documents exist.\numents that \"had not previously been located.\"\nMoreover, FOIA's legislative history reveals\nBA\nBrief for Appellants at 4-7; John F. Blake let-\nthat the requirement that a request identify the\nter, J.A. at 129. They contend that the CIA's\nP\nrecords sought, 5 U.S.C. § 552(a)(3), is \"not to\ndelay in responding to their request raises an\nbe used as a method of withholding records.\"\nT\ninference of bad faith that justifies discovery\nwith respect to the scope of the search. Brief\nS.Rep.No.813, supra, at 8, Accord, Bristol-\nsion\nfor Appellants at 20. At least one district court\nMyers Co. V. FTC, 138 U.S.App.D.C. 22, 25, 424\nof 1\njudge would apparently agree with them. See\nF.2d 935, 938 (1970). See also Attorney Gener-\nal's Memorandum, supra note 9, at 24. It fol-\nWh\nAss'n of National Advertisers, Inc. V. FTC, 38\nAd.L.2d 643 (D.D.C. April 1, 1976) (production\nlows that ambiguity resulting from imperfect\ntion\nof additional documents after six-month delay\ninformation should not be used as a justifica-\nbut\n\"presents a substantial issue of the complete-\ntion for prohibiting the discovery necessary to\ntime\nness of the agency search.\" Id. at 645).\nmake the FOIA work.\nIn this case I would not cripple plaintiffs'\nargi\n26. The court rejects the need for discovery of\nright to access to agency records because there\nFre\nthe definition of \"legislative history\" employed\nis ambiguity in their request. What they ap-\ndocu\nby the agency in its search because this is the\nparently seek is any and all information in\n\"term plaintiffs used, and if any ambiguity was\nafte\nwhatever form pertaining to the CIA's organic\nintroduced thereby plaintiffs must reap what\nstatutes. Yet a request so formulated would\nmar\nthey have sown.\" Maj. op. at - of 197 U.S.\nprovide agency employees with scarcely any\nmak\nApp.D.C., at 355 of 607 F.2d.\nmore guidance than one for \"legislative histo-\nrally\nI submit that this view is at war with the\nry.\" The problem, quite simply, is that plain-\npurposes of the FOIA. A FOIA request may of\ning.\ntiffs do not know what form such information\nnecessity be based on imperfect information-\nwill take, or where it might be located in the\ninter\nor none at all-about the particular agency's\nCIA's files. I would rely on the discovery proc-\ntime\nmethods of classifying and filing information.\ness to eliminate such a problem.\nFOIA's legislative history acknowledges the\nargt\nproblem, indicating that a request must supply\n27. J.A. at 129. See note 25 supra.\nonly \"a reasonable description enabling the\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n367\nCite as 607 F.2d 339 (1978)\n197 U.S.App.D.C. at 356 of 607 F.2d. I\nour judgment, save on the question of at-\ndo not disagree with the court's legal stan-\ntorneys' fees. With respect to that ques-\nn\n\"dard. What concerns me, however, is that\ntion, we remand to the district court to\nhere again plaintiffs have had no opportuni-\nreconsider its ruling in light of the altered\no\nty to make their case. A showing of an\ncircumstances of this case.\nagency's subjective reasons for producing\ndocuments is difficult to accomplish at all\ned\nI. FACTS\nevents. It is virtually impossible without\nch\nWe issued our opinion on 23 May 1978,\ndiscovery.\naffirming the district court's grant of sum-\nhi-\nmary judgment to the CIA. On 30 May\nVI. CONCLUSION\nd\n1978, a week after the issuance of our opin-\nis\nIn a recent FOIA case Judge Wilkey re-\nion, the CIA informed the Justice Depart-\nmarked that \"[t]he data which plaintiff\nment that it had found hundreds of addi-\nseeks to have produced\nare mat-\ntional documents that might be responsive\nters of interest not only to him but to the\nto plaintiffs' FOIA request. The Depart-\nan\n\"nation.\" Weisberg V. Department of Jus-\nment promptly informed plaintiffs and this\ntice, 177 U.S.App.D.C. 161 at 164, 543 F.2d\ncourt of CIA's discovery. On 6 June 1978\naly\n308 at 311 (1976). This observation applies\nplaintiffs filed a petition for rehearing and\n\"he\nwith particular force to the legislative his-\nsuggestions for rehearing en banc.¹\n\"tory underlying the creation of the CIA. I\nOn 14 June 1978 the CIA released to\nregret that an issue of such importance has\nplaintiffs' counsel thirty of the additional\nand\nnot been resolved in accordance with princi-\ndocuments. In an accompanying letter the\nof\nples of summary judgment.\nAgency stated that, even though it did not\nbelieve that all of the documents fell within\nOn Appellants' Motion to Vacate and\nplaintiffs' FOIA request, it was releasing\n357\nPetition for Rehearing\nthem anyway to assist plaintiffs' scholarly\nOpinion PER CURIAM.\nresearch. The letter explained further\nthat:\nDissenting opinion filed by Circuit Judge\nBAZELON.\n[m]ost of these documents were discover-\neais\ned late last fall, and additional documents\nthe\n*PER CURIAM.\nearlier this year, by the librarian of the\nto\nThis petition for rehearing was occa-\nOffice of General Counsel. She discover-\nstol-\ntioned n by an inexcusable lapse on the part\ned all of these documents which were\n424\nthe Central Intelligence Agency (CIA).\nunindexed, in the course of her indepen-\nWhile litigating the appeal whose disposi-\ndent research on legal projects unrelated\nfol-\ntion is here questioned, the CIA discovered\nto the Goland case. Although a sampling\nbut failed to disclose within any reasonable\nof the documents last fall revealed their\nto\ntime hundreds of documents which were\npossible relevance to Goland, it was not\nrarguably responsive to plaintiff-appellants'\nuntil late May 1978, when a partial list of\nFreedom of Information Act request. The\nthe documents was completed by the law\nap-\ndocuments' existence was not revealed until\nlibrarian, that the extent of the docu-\nin\nafter we issued our decision, affirming sum-\nments, and the significance of some of\nanic\nmary judgment for the CIA. The failure to\nthe documents to the Goland FOIA re-\nany\nstake the disclosure plainly called for natu-\nquest, were fully appreciated.\nink. rally casts a cloud over the entire proceed-\nThe following week, on 23 June 1978, the\nNain-\nation\nNevertheless, and without the barest\nCIA released to plaintiffs' counsel an addi-\nthe\nIntention of countenancing the CIA's un-\ntional 291 documents. Also on that date\nproc-\ntimely disclosure, on analysis of the issues\nfrgued and decided, we decline to disturb\nCIA's associate general counsel, Ernest\nMayerfeld, wrote the Justice Department to\n1. The effect of this timely petition has been to suspend issuance of our mandate.\n368\n607 FEDERAL REPORTER, 2d SERIES\nexplain the circumstances surrounding the\nnoted that during this period she was\nAgency's discovery and release of additional\nengaged in a major reorganization of the\nC\ndocuments:\nlaw library which incidentally also en-\nC\nMost of these documents were discover-\ntailed a physical move from one location\nto\ned last fall by the Office of General\nto another. Also, although the Table of\nby\nCounsel librarian in the course of exten-\nOrganization of the Office of General\nha\nsive research on two projects unrelated to\nCounsel called for an assistant law librar-\npe\nthe Goland litigation. Many of these doc-\nian, no one was appointed to that position\nci\numents were found in a CIA installation\nuntil March 1978. The law librarian first\nm\noutside of Washington where inactive\ncompleted a partial inventory of the addi-\ned\nrecords are kept, only after great dili-\ntional documents on May 19, 1978 and\ngence and persistence by the librarian in\nshortly thereafter it was decided that all\nsi\nconnection with her research. She be-\nthe newly-found documents would be re-\nda\ncame aware of the existence of these\nleased, subject to FOI[A] deletions, and\nin\ndocuments, which had been stored in\nyou were immediately informed.\nfe\ncardboard boxes and had not been organ-\nized in any fashion, as a result of several\nThis, then, appears to be the sequence of\nmain\nco\ninterviews with current and former CIA\nevents: (1) The district court granted sum-\nemployees conducted in connection with\nmary judgment to the CIA on 26 May 1976.\nPl\nher research projects. These documents\n(2) Plaintiffs filed their notice of appeal on\ned o\nwere not indexed and could not have been\n23 July 1976. (3) In November or Decem-\nfirst,\nfound under normal FOIA search proce-\nber 1977-while this appeal was still pend-\ndocu\ndures.\ning but more than a year-and-a-half after\nfact\nI can state most emphatically that\nthe district court's decision-the CIA dis-\nof t]\nthere was no intent within the CIA to\ncovered additional documents, some of\nread\nconceal the fact that these documents had\nwhich arguably fell within the scope of\nthat\nbeen found. The librarian, who had some\nplaintiffs' FOIA request. (4) Failing to in-\nto pl\npersonal familiarity with the Goland case\nform plaintiffs, the Justice Department, or\nthree\nand thus recognized that some of the\nthis court of the discovery, the CIA under-\n23 M\ndocuments which she had found might\ntook a sluggish four-month examination of\nhave some bearing on the Goland litiga-\nthe documents. (5) It was not until a week\ntion, immediately (i. e. in late November\nafter we issued our 23 May 1978 decision\nIn\nor early December 1977), informed the\nthat CIA finally revealed its discovery and\nsepar\nGeneral Counsel, the Deputy General\nbegan releasing the documents.\nwas I\nCounsel and the undersigned. Because at\nContending that this sequence of events\na con\nthat time the documents had not been\ncompletely undermines the basis of our 23\nmain\norganized or analyzed, and because it was\nnot immediately apparent which if any\nMay decision, plaintiffs have now filed a\nthat\nwere within the scope of the FOIA re-\nmotion summarily to vacate that decision.2\nof th\nquest in Goland, the General Counsel in-\nPlaintiffs' motion states in pertinent part:\npursu\nthat,\nstructed the librarian to begin to organize\nThe majority opinion affirmed the dis-\ndocur\nthese documents and segregate from\ntrict court decision based on CIA affida-\nreque\namong them those documents which qual-\nvits. It appears that these affidavits are\ncourt\nified for designation as \"legislative histo-\nincorrect.\n[T]he CIA has now\nout d\nry.\"\nproduced\nadditional documents\nthat\nThe law librarian proceeded with her\n\"discovered late last fall and additional\nords\"\nassigned task, but her extensive involve-\ndocuments earlier this year.\" Moreover,\nplain\nment in other routine duties prevented\n[the CIA] concedes that \"a sampling of\ntorne\nher completing this task as expeditiously\nthe documents last fall revealed their pos-\nas might have been desired. It should be\nsible relevance to Goland\nAf\ntenti\n2. The motion was filed 16 June 1978-between\n1978 and its release of 291 documents on 23\nthe CIA's release of 30 documents on 14 June\nJune 1978.\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n369\nCite as 607 F.2d 339 (1978)\nNo explanation has been offered by the\nthe discovery and belated disclosure of the\nCIA or the Justice Department for the\ndocuments, we find no occasion to disturb\nCIA's strategy decision to stand mute as\nour affirmance as to issues (1) through (4),\nto the status of the affidavits relied upon\nbut we do vacate that part of our decision\nby the Court until after the decision was\naffirming the denial of attorneys' fees and\nhanded down on May 23. Indeed, it ap-\nremand to the district court for reconsidera-\npears the CIA chose to withhold this cru-\ntion of that issue.\ncial information from the Justice Depart-\nment until after such decision was hand-\nA. Thoroughness of Search Issue\ned down\nBased on these admissions and conces-\nWe based our determination of the\nsions\nit should now be abun-\n\"search\" issue, as did the district court, on\ndantly clear that discovery is appropriate\nthree affidavits of Gene F. Wilson, the\nin this case and in any event, attorneys'\nCIA's Information and Privacy Coordinator.\nfees should be awarded because of the\nWe concluded \"that Wilson's sworn affida-\nmanner in which the CIA has chosen to\nvits on their face are plainly adequate to\nconduct itself in this litigation.\ndemonstrate the thoroughness of the CIA's\nPlaintiffs' contention seems to be ground-\nsearch for responsive documents. The affi-\ned on three distinct facts or occurrences:\ndavits give detailed descriptions of the\nfirst, the fact that additional responsive\nsearches undertaken, and a detailed expla-\ndocuments were found to exist; second, the\nnation of why further searches would be\nfact that CIA delayed informing this court\nunreasonably burdensome.\"\nof the documents until the court had al-\nready issued its decision; and third, the fact\n1. Plaintiff's Theory\nthat CIA ultimately released the documents\nPlaintiffs contend that the discovery of\nto plaintiffs. Plaintiffs believe that these\nadditional documents indicates that the CIA\nthree facts warrant vacating the decision of\n23 May 1978, at least in part.\naffidavits in this case, relied upon by both\nthe district court and this court, \"are incor-\nrect.\" Therefore, they argue that we\nII. DISCUSSION\nshould vacate our decision, or at least that\nIn our 23 May decision we resolved five\nportion of the decision dealing with the\nseparate issues. We held: (1) that the CIA\n\"search\" issue, because it was predicated on\nwas not required under the FOIA to release\ninaccurate affidavits. We disagree.\na congressional hearing transcript that re-\nmained under the control of Congress; (2)\n[12, 13] As a substantive matter, the\nthat the CIA had properly deleted portions\nmere fact that additional documents have\nof the so-called \"Hillenkoetter Statement\"\nbeen discovered does not impugn the accu-\npursuant to Exemption 3 of the FOIA; (3)\nracy of the Wilson affidavits. The issue\nthat, on the record, the CIA's search for\nwas not whether any further documents\ndocuments responsive to plaintiffs' FOIA\nmight conceivably exist but whether CIA's\nrequest was adequate and that the district\nsearch for responsive documents was ade-\ncourt's grant of summary judgment with-\nquate. The Wilson affidavits never stated\nout discovery was within its discretion; (4)\nthat no further documents existed; they\nthat the CIA's definition of \"agency rec-\nmerely described the scope of the searches\nords\" was not in controversy; and (5) that\nthat had been undertaken and stated that\nplaintiffs' counsel were not entitled to at-\nno additional documents could be located\ntorneys' fees.\nabsent an extraordinary effort not required\nAfter carefully reviewing plaintiffs' con-\nby the FOIA. As we indicated in our opin-\ntentions and the circumstances surrounding\nion, an agency is required only to make\n3. Maj. opin. at - of 197 U.S.App.D.C., at 353 of 607 F.2d.\n370\n607 FEDERAL REPORTER, 2d SERIES\nreasonable efforts to find responsive mate-\na final judgment. The occasions when new-\nry\nrials; 4 it is not required to reorganize its\nly discovered evidence or changed circum-\nth\nfiling system in response to each FOIA\nstances will warrant setting aside a final\nva\nrequest. The circumstances surrounding\njudgment are limited procedurally as well\ndis\nthe discovery of additional documents as\nas substantively.\nwe\ndescribed in CIA's letters of 14 and 23 June\ndo not contradict the statements made in\nI\n2. Applicable Principles of Appellate Re-\nthe Wilson affidavits. According to CIA,\nfin\nview\nthe discovery of these documents was en-\nevi\ntirely adventitious. They were found by\n[15, 16] A final district court judgment\nthe\nthe law librarian in the course of indepen-\nmay be altered on direct review only\non\ndent research on projects unrelated to the\nthrough two procedures.⁵ One, of course, is\nthe\nGoland litigation. The documents were not\nthe present appeal. The other is a motion\nof\nindexed; they were found, only after extra-\nin district court for relief from the judg-\nera\nordinary effort, stored in cardboard boxes\nment under federal rule 60(b).6 Appellate\nma\nprimarily among the 84,000 cubic feet of\nreview is ordinarily unaffected by matters\npro\ndocuments at CIA's retired-records center\nnot contained in the record.⁷ This we think\ned\nis the case with the facts disclosed here,\nreli\noutside of Washington. According to CIA,\nthe documents \"could not have been found\nwhether characterized as \"newly-discovered\ncou\nunder normal FOIA procedures.\" Thus, it\nevidence\" or \"changed circumstances.\" In\nof\nwould appear that the new facts before us\nneither event do the disclosures warrant\nI\nnow do not really conflict with the facts as\nvacating our judgment.\nsur\npresented to the district court and reflected\nrele\nin the record upon which our decision was\n[17] The fact that additional documents\nnea\nbased, and would not, as a substantive mat-\nexist, insofar as it is probative of the thor-\nes.\"\nter, prompt us to vacate our affirmance.\noughness vel non of the search, is rather\nin v\nplainly \"newly discovered evidence.\" We\nnoti\n[14] Concededly, the discovery of addi-\nhave found no case in which the Supreme\ncase\ntional documents is more probative that the\nCourt or q court of appeals has granted a\nsent\nsearch was not thorough than if no other\nrehearing or vacated its opinion based on\nexa\ndocuments were found to exist. Moreover,\nnewly discovered evidence. The reason for\ning\nthe delay in disclosing the documents at\nthis should be self-evident: an appellate\nvers\nleast arguably evidences a lack of vigor, if\nopinion is based on the record before it, and\nthe\nnot candor, in responding to FOIA requests.\nhence cannot be set aside on the basis of\nalter\nnewly discovered facts outside the record.\ntech\nHowever, a disappointed litigant may not\nHer\navail herself of every imaginable inference\nThis rule is clear in the Supreme Court's\nfrom newly disclosed facts in order to upset\ncases, dating from those in the last centu-\n9. 1\n36\n4. Maj. opin. at - of 197 U.S.App.D.C., at\nKorn V. Franchard Corp., 456 F.2d 1206, 1208 &\nV.\n352 of 607 F.2d.\nn.3 (2d Cir. 1972); In re Gulf Aerospace Corp.,\n449 F.2d 733, 734 (5th Cir. 1971); and, in limit-\n10.\n5. See Carr V. District of Columbia, 177 U.S.\nApp.D.C. 432, 439, 543 F.2d 917, 924 (1976).\ned cases, facts which may be judicially noticed,\n17,\ne. 8., Landy V. Federal Deposit Insurance Corp.,\n11.\n6. Fed.R.Civ.P. 60(b).\n486 F.2d 139, 150-51 (3d Cir. 1973), cert. de-\nnied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d\n12.\n7. There are a number of settled exceptions to\n312 (1974).\nthe\nthis general principle of appellate review; as,\nfor example, where there is an intervening\napp\n8. See, e. 8., Carr V. District of Columbia, 177\nund\nchange in a pertinent law, e. g., Gomez V.\nU.S.App.D.C. 432, 436, 543 F.2d 917, 921\ncov\nWilson, 155 U.S.App.D.C. 242, 247-48, 477\n(1976); AG Pro, Inc. V. Sakraida, 481 F.2d 668,\nat\nF.2d 411, 416-17 (1973); changed circumstanc-\n669 (5th Cir. 1973), rev'd on other grounds, 425\nMil\nes which render the controversy moot, e. B.,\nWirtz V. Local Union 410, 366 F.2d 438, 442 (2d\nU.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976);\n& I\nCir. 1966); changed circumstances which alter\nDavis V. Casey, 70 App.D.C. 27, 34-35, 103\ncas\nthe appropriateness of injunctive relief, e. B.,\nF.2d 529, 536-37 (1939).\nclos\n-\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n371\nCite as 607 F.2d 339 (1978)\nry to the recent Standard Oil case 10 where\nprobative of the same contentions as arose\nnew-\nthe Court refused to recall its mandate and\nfrom the mere existence of the documents\ncircum-\na\nfinal\nvacate its opinion on the basis of newly\n(i. e., that the search was not conducted\nwell\ndiscovered facts, stating that its opinion\nthoroughly or in good faith). Consequently,\nas\nwas confined to the record.\nfor purposes of appellate review of these\nallegations, we think nothing turns on the\n[18-20] An appellate court has no fact-\narguable distinction between newly discov-\nRe-\nfinding function. It cannot receive new\nered evidence and altered circumstances.\nevidence from the parties, determine where\nUnder either theory the proper course ordi-\nudgment\nthe truth actually lies, and base its decision\nnarily would be to proceed in the first in-\nonly\non that determination. Factfinding and\nstance in district court under rule 60(b).\nthe creation of a record are the functions\ncourse,\nis\nof the district court; therefore, the consid-\na\nmotion\n[21] Finally, inasmuch as relief in dis-\njudg-\ngeration of newly-discovered evidence is a\nthe\ntrict court may be foreclosed,¹³ it might be\nmatter for the district court. The proper\nAppellate\nthought that this court, in the exercise of\nprocedure for dealing with newly discover-\nmatters\ned evidence is for the party to move for\nour appellate jurisdiction, should remand\nwe\nthink\nfor further proceedings in light of the new\nrelief from the judgment in the district\nhere,\nfacts without regard to the strictures of\ncourt under rule 60(b) of the Federal Rules\ndiscovered\nof Civil Procedure.\nrule 60(b). Some support may be found for\nIn\nthe proposition in the broad language of 28\nwarrant\nInsofar as plaintiffs rely on the facts\nU.S.C. § 2106, which provides:\nturrounding the documents' discovery and\nThe Supreme Court or any other court of\nrelease by the CIA, their argument is more\n\"nearly dependent on \"changed circumstanc-\nappellate jurisdiction may affirm, modify,\ndocuments\na\". To be sure, there are occasional cases\nvacate, set aside or reverse any judg-\nthe\nthor-\nis\nrather\nin which altered circumstances are properly\nment, decree or order of a court lawfully\nWe\nnoticed on appeal.¹ Invariably in such\nbrought before it for review, and may\nSupreme\ncases, however, events have altered the es-\nremand the cause and direct the entry of\nsential nature of the controversy, as, for\nsuch appropriate judgment, decree, or or-\ngranted\na\nbased\nexample, where there has been an interven-\nder, or require such further proceedings\non\nfor\nIng change in the law or where the contro-\nto be had as may be just under the cir-\nreason\nPersy has become moot. But in this case\ncumstances.¹⁴\nappellate\nfore\nand\nthe distinction between new evidence and\nThis court recently reserved the question\nit,\nbasis\nof\naltered circumstances is largely a matter of\nwhether section 2106 afforded an alternate\nrecord.\ntechnical usage rather than substance.¹²\nway of reopening a final judgment in light\nhe\nCourt's\nHere the intervening events are allegedly\nof new facts. 15 Although our research has\nlast\ncentu-\nE 8. Maxwell Land-Grant Case, 122 U.S.\ntion for purposes of rule 60(b). Moreover, the\n365. 7 S.Ct. 1271, 30 L.Ed. 1211 (1887); Roemer\nexercise of our discretion is likewise uncon-\n1208\n&\nk Simon, 91 U.S. 149, 23 L.Ed. 267 (1875).\nfined by the \"correct\" rule 60(b) characteriza-\nspace\nCorp.,\nlimit-\nStandard Oil Co. V. United States, 429 U.S.\ntion of these facts.\nin\nnoticed.\n17. 97 S.Ct. 31, 50 L.Ed.2d 21 (1976).\n13. See pp.\nof 197 U.S.App.D.C., 372-\nCorp.,\nde-\nIL See note 7 supra.\n373 of 607 F.2d infra.\ncert.\n40\nL.Ed.2d\n12 The distinction is ordinarily made between\nthese two grounds of relief for purposes of\n14. 28 U.S.C. § 2106 (1976).\n177\nrules for filing motions\n15. Carr V. District of Columbia, 177 U.S.App.\nolumbia,\n60(b). To be \"newly dis-\n917,\n921\nD.C. 432, 444 & n.96, 543 F.2d 917, 929 & n.96\nmust have been in existence\nF.2d\n668,\nthe time of the trial, see C. Wright & A.\n(1976) (if it appeared relief were not otherwise\ngrounds,\n425\nMiller, & Federal Practice and Procedure s 2859\navailable, court would consider \"whether the\n784\n(1976):\n34-35,\n103\nuse, the alleged substantive effect of the dis-\nn.35 (cases cited) (1973). However, in this\ninterests of justice would not require [it] to\nremand to the District Court to consider the\ndosures is independent of their characteriza-\nclaim\").\n372\n607 FEDERAL REPORTER, 2d SERIES\ndisclosed no case which has so held, we may\n8. Relief in the District Court\nsuppose arguendo that we do have ample\nRelief from a final judgment may\nrevisory power under section 2106 in appro-\nsought in district court through a rule 60(b)\npriate cases. We are nevertheless thor-\nmotion; 16 our decision not to vacate our\noughly convinced that this would not be a\naffirmance is, of course, without prejudice\nproper occasion for such extraordinary re-\nto plaintiffs' proceeding under that rule.\nlief. Nothing in the circumstances which\nHowever, as we have noted, that approach d,\nplaintiffs raise suggests to us that the dis-\nmay be difficult or wholly unavailable.\ntrict court judgment was incorrect. We are\nInsofar as the additional documents are\nsatisfied by the submissions to this court\nnew evidence, recourse to rule 60(b) is gov.\nthat the original failure to uncover the doc-\nerned (and apparently precluded) by the,\numents was wholly understandable and not\nrule's strict timing requirements. There is\ninconsistent with the district court's finding\nan ironclad one-year limit on the filing of a\nthat the search was thorough.\nrule 60(b) motion based on newly discovered\nevidence. Such motions must be filed with-\nMoreover, although the delay in releasing\nin one year from the date the judgment was\nthe materials may not be excused, we do\nentered in the district court, which in this\nnot think that that misconduct vitiates the\ncase was 26 May 1976-two years ago and\ndistrict court's finding either. Only were\nmore. The one-year period is not tolled by\nwe to indulge a fairly harsh inference as to\na pending appeal,¹⁷ and under the federal\nthe bona fides of the CIA would we be\nrules no court has power to extend the\ninclined to upset the judgment. The in-\ndeadline.\nstant facts fall quite short of supporting\nThe one-year time limit in rule 60(b) ap-\nany such conclusion. Consequently, wheth-\nplies only to motions under clauses (1), (2),\ner or not there is any possibility of relief\nand (3), covering fraud between the parties,\nfrom the judgment in district court, we\nnewly discovered facts, and misconduct of a\ndecline to disturb our affirmance respecting\nparty. There is also a catch-all clause (6),\nthe thoroughness of the search. We reach\ncovering \"any other reason justifying relief\nthis conclusion fully aware that we deal\nfrom the operation of the judgment.\"\nhere with a summary judgment whose fac-\nThere isno time limit for motions brought\ntual basis derives from affidavits and with-\nunder this clause; however, relief under\nout discovery.\nthis clause is nót available unless the other\n16. Fed.R.Civ.P. 60(b) provides as follows:\nyear after the judgment, order, or proceeding\n(b) Mistakes; Inadvertence; Excusable\nwas entered or taken. A motion under this\nNeglect; Newly Discovered Evidence; Fraud,\nsubdivision (b) does not affect the finality of\netc. On motion and upon such terms as are\na judgment or suspend its operation. This\njust, the court may relieve a party or his legal\nrule does not limit the power of a court to\nrepresentative from a final judgment, order,\nentertain an independent action to relieve a\nor proceeding for the following reasons: (1)\nparty from a judgment, order, or proceeding,\nmistake, inadvertence, surprise, or excusable\nor to grant relief to a defendant not actually\nneglect; (2) newly discovered evidence which\npersonally notified as provided in Title 28,\nby due diligence could not have been discov-\nU.S.C., § 1655, or to set aside a judgment for\nered in time to move for a new trial under\nfraud upon the court. Writs of corant nobis,\nRule 59(b); (3) fraud (whether heretofore de-\ncoram vobis, audita querela, and bills of re-\nnominated intrinsic or extrinsic), misrepre-\nview and bills in the nature of a bill of re-\nsentation, or other misconduct of an adverse\nview, are abolished, and the procedure for\nparty; (4) the judgment is void; (5) the judg-\nobtaining any relief from a judgment shall be\nment has been satisfied, released, or dis-\nby motion as prescribed in these rules or by\ncharged, or a prior judgment upon which it is\nan independent action.\nbased has been reversed or otherwise vacat-\n17. Greater Boston Television Corp. V. FCC, 149\ned, or it is no longer equitable that the judg-\nment should have prospective application; or\nU.S.App.D.C. 322, 334, 463 F.2d 268, 280\n(6) any other reason justifying relief from the\n(1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042,\noperation of the judgment. The motion shall\n32 L.Ed.2d 338 (1972); C. Wright & A. Miller,\nbe made within a reasonable time, and for\nFederal Practice and Procedure § 2866, at 233\nreasons (1), (2), and (3) not more than one\n(1973).\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n373\nCite as 607 F.2d 339 (1978)\nclauses, (1) through (5), are inapplicable.\"\ntrial the plaintiff must meet the same\nIt may be that a showing of changed cir-\nsubstantive requirements as govern a mo-\nb)\ncumstances would bring plaintiffs within\ntion for like relief under Rule 60(b): he\nthe residual 60(b)(6), although it is far from\nmust show that the evidence was not and\nIF\ncertain either that the allegations are not\ncould not by due diligence have been dis-\ncovered by clauses (1) through (3) (in which\ncovered in time to produce it at trial;\ncase they would be time barred) or that\nthat it would not be merely cumulative;\nthey present the \"extraordinary\" circum-\nand that it would probably lead to a\nstances for which relief under 60(b)(6) is\njudgment in his favor.\nreserved.¹⁹\nWe merely note the difficulty of satisfying\n[22,23] In any case, rule 60(b) contains\nthe \"stringent\" rules which circumscribe\na saving clause which states that the rule\nthe trial court's discretion in such matters;\n\"does not limit the power of a court to\nour disposition does not, of course, foreclose\ned\nentertain an independent action to relieve a\nplaintiffs' bringing an independent suit for\nparty from a judgment, order or proceeding\nrelief.\nas\n\" Thus the rule does not extin-\nguish the historical authority of equity\nB. The Hearing Transcript, the Hillen-\nnd\nkoetter Statement, and the Defini-\ncourts to reform judgments in appropriate\nby\ncases.20 The one-year limit on certain of\ntion of \"Agency Records\" Issues\nthe rule 60(b) motions is not applicable to\nWith respect to the congressional hearing\nthe independent action, leaving it, apart\ntranscript issue, we held in our 23 May\nfrom collateral attack, as the only manner\ndecision that, given the circumstances of\np-\nof obtaining relief from a judgment in\nthe transcript's creation, it \"remains under\nthose cases where the 60(b) motion has be-\nthe control of and continues to be the prop-\ncome time barred. We recently recalled\nerty of the House of Representatives.\" 23\nthat 'the exception for equitable interposi-\nThus, we concluded that \"the Hearing\ntion by independent suit rests on \"strin-\nTranscript is not an 'agency record' but a\ngent\" rules limited to circumstances \"which\nCongressional document to which the FOIA\n\"render it manifestly unconscionable that a\ndoes not apply.\"\nht\njudgment be given effect\". Although\nWith respect to the Hillenkoetter State-\ner\nsuch circumstances may sometimes appear\nment issue, we held that the deleted por-\ner\nfrom evidence disclosed after the judgment,\ntions of the Statement could properly be\nsuch extraordinary review is not to be in-\nwithheld pursuant to FOIA Exemption 3,\nis\ndulged loosely. We have observed:\nwhich was determined to encompass 50\nin an independent action seeking relief\nU.S.C. § 403(d)(3) and 50 U.S.C. § 403g.\nto\nfrom a judgment on the basis of newly-\nOur analysis involved a two-step inquiry:\ndiscovered evidence and asking for a new\n(1) whether the CIA's nondisclosure stat-\n18. Klapprott V. United States, 335 U.S. 601,\n21. Carr V. District of Columbia, 177 U.S.App.\n613, 69 S.Ct. 384, 93 L.Ed. 266 (1949); C.\nD.C. 432, 442, 543 F.2d 917, 927 (1976) (quoting\nWright & A. Miller, Federal Practice and Proce-\nGreater Boston Television Corp. V. FCC, 149\ndure § 2864, at 217 (1973).\nU.S.App.D.C. 322, 333, 463 F.2d 268, 279\n(1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042,\n19. See, e. 8., Ackermann V. United States, 340\n32 L.Ed.2d 338 (1972)).\nU.S. 193, 202, 71 S.Ct. 209, 95 L.Ed. 207 (1950);\nWright & A. Miller, Federal Practice and\n22. Philippine Nat'l Bank V. Kennedy, 111 U.S.\nProcedure § 2864 at 219-20 (1973).\nApp.D.C. 199, 200, 295 F.2d 544, 545 (1961)\n(footnotes omitted).\n20. See Advisory Committee Note to 1946\nAmendment to Rule 60(b); West Virginia Oil &\n23. Maj. opin. at - of 197 U.S.App.D.C., at\nGas Co. V. George E. Breece Lumber Co., 213\n347 of 607 F.2d.\nF.2d 702, 706 (5th Cir. 1954). The independent\naction is, of course, to be distinguished from\n24. Maj. Opin. at - of 197 U.S.App.D.C., at\nthe ancillary common law and equitable reme-\n348 of 607 F.2d.\ndies specifically abolished by rule 60(b).\n374\n607 FEDERAL REPORTER, 2d SERIES\nutes-sections 403(d)(3) and 403g-are Ex-\nCIA's discovery of new documents is ctr-\nemption 3 statutes; and (2) whether the\ncumstantial evidence that the Agency's af-\nof\nwithheld materials, as described by CIA's\nfidavits generally may not have been accu-\nby\naffidavit, fall within the nondisclosure stat-\nrate.\non\nutes.\nOur reasoning with respect to the issue of\nda\nFinally, we refrained from reaching the\nthe search's thoroughness is fully applicable\nda\ndefinition of \"agency records\" issue because\nhere.2 We will not vacate our judgment\nm\nno live and genuine controversy remained\non the basis of such a tenuous theory. The\nfr\non this matter between plaintiffs and CIA.\nallegations raise no serious doubt as to the\nwe\ncorrectness of the district court's findings.\nre\n[24] Neither the discovery of additional\ndocuments, nor CIA's delayed disclosure of\nPlaintiffs may nevertheless wish to seek\nbr\nthis discovery, nor CIA's ultimate release of\nrelief from the district court under rule\ncir\nthe documents in any way undermines our\n60(b) or otherwise. In the meanwhile, our\nholdings on these three issues. The dis-\nresolution of the Transcript, Statement, and\nth\nDefinition issues must stand as originally\ndo\ncovery and release of new documents obvi-\nously does not change the character of the\nstated in our 23 May decision.\nar\nne\nCongressional Hearing Transcript. It re-\nC. Attorneys' Fees Issue\naf\nmains a congressional record for the reasons\nstated in our opinion, and as such was prop-\n[25] In our 23 May decision we declined\npe\nerly withheld by CIA. Similarly, the dis-\nto award attorney's fees to plaintiffs, hold-\n5.\ncovery and release of additional documents\ning that plaintiffs had not \"substantially\nclearly has no bearing on whether, as a\nprevailed\" even though the CIA had re-\nmatter of law, sections 403(d)(3) and 403g\nleased the Vandenberg Statement and por-\ntions of the Hillenkoetter Statement after\nfrom\nare Exemption 3 statutes or on whether\nportions of the Statement fall within those\nthey commenced suit. We stated: \"Even if\nde\nnondisclosure statutes. Finally, the circum-\nplaintiffs could show some causal nexus be-\nrel\nstances of the discovery and release of new\ntween their litigation and the CIA's disclo-\ndocuments do not give rise to a controversy\nsure, which they have not done, we doubt\nth\nbetween the parties as to CIA's definition\nthat plaintiffs could be said to have 'sub-\nGe\nof \"agency records.\"\nstantially prevailed' if they, like Pyrrhus,\n27.\nNevertheless, plaintiffs argue that the\nhave won a battle but lost the war.\"x\n(\nCIA's discovery of additional documents\nPlaintiffs now contend that this aspect of\na\n1\ndoes, in a very remote sense, bear upon the\nour decision has been undermined by subse-\n-\nvalidity of our holdings on the Transcript,\nquent events. They point not to the CIA's\n(\nStatement, and Definition issues. They\ndiscovery of additional documents or to the\n1.\npoint out that our conclusions on these\nAgency's delay in revealing this discovery,\nI\nt\nthree issues were, to varying extents, based\nbut rather to the fact that CIA ultimately\ntu\npartially upon assertions in CIA's affida-\nreleased these additional documents. Plain-\n(\nvits. Thus, they argue that, since the dis-\ntiffs' argument seems to be that there is\nt\ncovery of new documents suggests that\nthe requisite causal connection between\nr\no\nCIA's affidavits may have been inaccurate\ntheir prosecution of the action and ChA's\n2.\nin one respect, namely, the thoroughness of\nultimate release of further documents such\nS\nsearch issue, they may also have been inac-\nas they may now be said to have \"substan-\ni\ncurate in other respects, namely on these\ntially prevailed\" in the litigation. The\n80\nother three issues. Therefore, plaintiffs ar-\nAgency's release of documents occurred af-\n1\ni\ngue, our decision on these points may have\nter the decision in this case. Thus, this part\n6\nrested on incorrect affidavits. In other\nof plaintiffs' argument relies on a post-\ndi\nwords, plaintiffs' contention is that the\njudgment change in factual circumstances.\n3\n25. See pp.\nof 197 U.S.App.D.C., pp.\n26. Maj. opin. at - of 197 U.S.App.D.C., at\n(\n369-374 of 607 F.2d supra.\n356 of 607 F.2d. See 5 U.S.C. $ 552a(4)(E)\n(1976).\nn\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n375\nCite as 607 F.2d 339 (1978)\nOf course, plaintiffs might move to re-\ndocuments known to be relevant to plain-\nopen this particular issue in district court\ntiffs' FOIA request had been discovered\nby means of a rule 60(b)(6) motion. The\nwithin the agency. Not until May 30, 1978,\none-year limit in rule 60(b) applies only to\none week after our opinion issued, and some\nclauses (1) through (3); it does not apply to\nsix months after the documents were \"dis-\nclause (6) which authorizes relief from judg-\ncovered,\" did the General Counsel inform\nment for \"any other reason justifying relief\nthe Justice Department that these docu-\nfrom the operation of the judgment.\" As\nments had been found.¹ We must now de-\nwe have observed, one of the grounds for\ntermine the effect of these events on our\nrelief that has been recognized under this\nprevious disposition of this case. I believe\nbroad rubric is post-judgment change in\nthat both the disclosure of 321 additional\ndrcumstances.\ndocuments and the circumstances surround-\nHowever, in the interest of expediting\ning their discovery cast serious doubt on the\nthis matter and because we entertain little\noriginal disposition of this case. I therefore\n,doubt that the merits of the attorneys' fees\ndissent from the majority's decision to leave\nargument should be reheard in light of the\nthat opinion undisturbed. I concur, how-\nnew facts, we vacate that portion of our\never, in the decision to remand for consider-\naffirmance and the District Court judgment\nation of plaintiffs' right to attorney fees.\npertaining to fees and remand for the Dis-\ntrict Court's reconsideration.\nSo ordered.\nI.\nI begin my examination with a simple\nBAZELON, Circuit Judge, dissenting\nquestion-had the CIA seasonably revealed\nfrom the denial of the motion to vacate, the\nto us, prior to our decision, that it had\ndenial of rehearing, and the denial of\n\"discovered\" 321 documents arguably with-\nrehearing en banc.\nin the scope of plaintiffs' request, would we\nIn November or December, 1977, while\nnonetheless have issued the opinion of May\nthis case was pending before our panel, the\n23? I have no difficulty in concluding that\nGeneral Counsel of the CIA learned that\nwe would not.3\n27. See Scott V. Young, 307 F.Supp. 1005, 1007\non the majority's previous discussion of the\n(E.D.Va.1969), aff'd, 421 F.2d 143 (4th Cir.),\nadequacy of the CIA's search.\ncert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26\nL.Ed.2d 91 (1970); American Employers Ins.\nCo. V. Sybil Realty, 270 F.Supp. 566, 569-70\n3. We may assume, arguendo that an appellate\n(E.D.La.1967).\ncourt would be more reluctant to consider new\n1. The Justice Department, acting with com-\nevidence brought to its attention after its opin-\nion issued rather than before. Compare Stan-\nmendable dispatch, appears to have informed\ndard Oil Co. of California V. United States, 429\nboth plaintiffs and this court of the existence of\nU.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976) (deny-\nadditional documents on the same day that the\ning motion to recall mandate after decision on\nCIA informed Justice. There is thus no sugges-\nthe basis of alleged misconduct by government\ntion that the attorneys for the Justice Depart-\ncounsel and new evidence) with United States\nment departed in any way from their duties as\nV. Shotwell (I), 355 U.S. 233, 241, 78 S.Ct. 245,\nofficers of this court.\n251, 2 L.Ed.2d 234 (1957) (remanding for con-\n2 I express no opinion herein concerning the\nsideration of a \"challenge to the integrity of the\nsignificance of these disclosures on the \"hear-\nrecord based on newly discovered evidence\").\ning transcript,\" the \"Hillenkoetter statement\"\nBut where, as here, the evidence was withheld\nand the definition of agency records. I adhere\nby the agency with full knowledge of its rele-\nto the views expressed in my dissenting opin-\nvance, the concern for finality is overridden by\nion. See Goland V. CIA, 197 U.S.App.D.C. -,\na need to prevent the agency from profitting by\ndissenting) 607 F.2d 339 (D.C.Cir. 1978) (Bazelon, J.,\nits misdeed. Therefore, I believe it is appropri-\nat\nof 197 U.S.App.D.C., at\nate to analyze the motion to vacate in terms of\n358-362 of 607 F.2d (hearing transcript),\nthe effect that the CIA's revelations would have\n1 of 197 U.S.App.D.C., 362-365 of 607 F.2d\nhad on this court, had that information been\n(Hillenkoetter statement).\nseasonably tendered before our decision.\nFor the purposes of this discussion I confine\nAccordingly, this case comes in a different\nmy remarks to the impact of these disclosures\nposture than Realty Acceptance Corp. V. Mont-\n376\n607 FEDERAL REPORTER, 2d SERIES\nThe jurisdiction of the federal courts is\nexistence of additional documents, it is in-\nque\nlimited to cases or controversies.4 Central\nconceivable to me that we would have been\nin 1\nto that provision is the requirement that\nindifferent to the significance of the CIA's\nof\nthe federal courts do not sit to give adviso-\nadmissions in assessing the adequacy of the\napp\nry opinions,\" nor to render decisions which\noriginal search. The majority rests its deci-\ndo\ncan offer no relief to any party. Here the\nsion on the observation that \"the mere fact\norig\nplaintiffs sought all CIA records concerning\nthat additional documents have been discov-\nnot\nthe legislative history of the agency's gov-\nered does not impugn the accuracy of the\nerning statute. As a result of the belated\nWilson affidavits.\" Maj. op. at - of 197\nfind\nrelease of some 321 documents to plaintiffs\nU.S\nU.S.App.D.C., at 369 of 607 F.2d. To my\nby the CIA, it may well be that plaintiffs\nmind, this is a question of fact that cannot\nmit\nare fully satisfied that their request has\npossibly be decided on the record before us.\nvac\nbeen honored' and no longer require fur-\nThe majority notes, \"[a]ccording to CIA, the\nfac\nther relief from this court on that issue.\ndiscovery of these documents was entirely\nB\nIf the plaintiffs are in fact satisfied, then\nadventitious. They were found\nby\nany appeal from the denial of discovery is\nonly after extraordinary effort\ning\nclearly moot. Because mootness would de-\nId. at - of 197 U.S.App.D.C., at 370 of\nsur\nprive this court of jurisdiction, we would be\n607 F.2d. These representations may well\ntior\nobliged to note it, regardless of when dur-\nbe true. But the fact is that at this stage\nfact\ning the course of the litigation the contro-\nof the litigation they are simply ex parte\n\"or\nversy became moot.8 I therefore find it\nrepresentations. Plaintiffs have had no op-\nwas\ndifficult to believe that we would not have\nportunity to test these assertions under cir-\nwo\ninquired further into the issue of mootness,\ncumstances that would admit of appropriate\nsup\neither by remanding to the district court for\nfindings of fact.\nvirt\na determination of that issue,\" or at least\nThe majority's extreme reluctance to per-\nrequiring further submission from the par-\n10.\nmit plaintiffs to explore the factual basis of\ngi\nties.\nthe CIA's assertions thus repeats the basic\nbu\nerror of the original panel opinion. The\nag\nII.\nA\nmajority again prematurely forecloses\nEven assuming that there remained a live\nplaintiffs' inquiry into the nature of the\n11.\nCIA's search in response to the FOIA re-\nto\ncontroversy between the parties over the\nsu\ngomery, 284 U.S. 547, 52 S.Ct. 215, 76 L.Ed.\n7. Of course, plaintiffs have not conceded the\nas\nc!\n476 (1932), where the Court of Appeals' order\npropriety of the CIA's decision to withhold cer-\n23\nremanding to the District Court to consider\ntain documents or portions of documents pur-\n(1\nnew evidence was entered after the Court of\nsuant to FOIA. See note 2, supra.\n2-\nAppeals lost jurisdiction of the case (by virtue\nth\nof its earlier order dismissing the appeal). See\n8. See, e. g. Allee V. Medrano, 416 U.S. 802, 818\nsi\nid. at 551-52, 52 S.Ct. 215.\nn.12, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566\nP\n4. U.S.Const., Art. III, Sec. 2.\n(1974): \"In the federal system an appellate\nsi\ncourt determines mootness as of the time it\nLa\nconsiders the case, not as of the time it was\nn\n5. See e. 8., Golden V. Zwickler, 394 U. S. 103,\nfiled.\" See also Steffel V. Thompson, 415 U.S.\nC\n108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).\n452, 459-60 & n.10, 94 S.Ct. 1209, 39 L9Ed.2d\nd\n505 (1974).\nc\n6. See, e. g., Preiser V. Newkirk, 422 U.S. 395,\nH\n401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975).\n9. \"There would certainly be no doubt of the\n[A] federal court has neither the power to\nneed for a court remand if the change of cir-\nL\nrender advisory opinions nor \"to decide ques-\ncumstances were such as to make the case\ntions that cannot affect the rights of litigants\nmoot.\" Greater Boston Television Corp. V. F.\nit\nin the case before them.\" Its judgments\nC. C., 149 U.S.App.D.C. 322, 337 n.25, 463 F.2d\nr\nmust resolve 'a real and substantial contro-\n268, 283 n.25 (1971), cert. denied, 406 U.S. 950,\n9\nversy admitting of specific relief through a\n92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). Although\n1\ndecree of a conclusive character, as distin-\nJudge Leventhal there referred to review of\nguished from an opinion advising what the\nagency proceedings, the same jurisdictional\nr\nlaw would be upon a hypothetical state of\nconsiderations apply to appellate review of a\nfacts.\" (Citations omitted.)\ndistrict court decision.\nGOLAND V. CENTRAL INTELLIGENCE AGENCY\n377\nCite as 607 F.2d 339 (1978)\nquest.\" But the error is even more serious\nremand this case to the district court to\nin this case, for we do not have the benefit\ndetermine the effect of these disclosures on\nof a trial court judgment, entered after\nthe district court's prior decision upholding\nappropriate inquiry, that these revelations\nthe adequacy of the CIA's initial search.¹¹\ndo not undermine the validity of the CIA's\noriginal affidavits. The majority correctly\nIII.\nnotes that \"[a]n appellate court has no fact-\nfinding function.\" Maj. op. at - of 197\nI wish to make explicit the seriousness\nU.S.App.D.C., at 371 of 607 F.2d. I sub-\nwith which I regard the CIA's dereliction in\nmit that the majority denies the motion to\nthis case. I do not suggest that the CIA\nfailed to inform this court that it had dis-\nvacate precisely because it has found the\nfacts against plaintiffs.\ncovered the documents simply to procure a\nfavorable decision (though this possibility\nBoth the volume of documents discovered\ncertainly cannot be rejected without a full-\n$ by the CIA and the circumstances surround-\ner factual inquiry into the circumstances\ning the initial withholding and later disclo-\nsurrounding these events). I do believe\nsure of the documents raise serious ques-\nfirmly, however, that the CIA had a strict\ntions that can only be resolved by a full\nobligation to report this information to the\nfactual inquiry. The majority finds the\ncourt at the moment its arguable relevance\n\"original failure to uncover the documents\nbecame known.¹² This is central to the\nwas wholly understandable.\" Perhaps I\n\"unqualified duty of scrupulous candor that\nwould too, on a proper record. Under our\nrests upon government counsel in all deal-\nsupervisory power, invested in this court by\nings\" with the courts.¹³ The CIA's \"ex-\nvirtue of 28 U.S.C. § 2106 (1976), I would\ncuse\" for this delay, that the matter was\n10. As I noted in my earller dissent, \"[m]y disa-\nU.S.App.D.C. 144, 591 F.2d 753 (1978). How-\ngreement, again, concerns not the substance\never, in Jordan we recognized that in unusual\nbut the timing of the judgment in favor of the\ncircumstances we might remand to the trial\nagency.\" Dissenting op. at - of 197 U.S.\ncourt (pursuant to § 2106) to permit considera-\nApp.D.C., at 366 of 607 F.2d.\ntion of a FOIA exemption raised by the govern-\n11. I entertain no doubt that we have the power\nment for the first time on appeal. In so observ-\nto consider the impact of these disclosures pur-\ning, we recognized that the policies of FOIA\nsuant to § 2106, whether they are characterized\nmight outweigh the generalized interest in fi-\nas \"newly discovered evidence\" or \"changed\nnality that normally confines our review to the\ncircumstances.\" See Patterson V. Alabama,\nissues as presented in the trial court. If the\n294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082\ngovernment, under some circumstances, is to\n(1935); Gomez V. Wilson, 155 U.S.App.D.C.\nbe permitted to expand its arguments on ap-\n242, 247-248, 477 F.2d 411, 416-17 (1973). Al-\npeal to protect legitimate Interests in non-dis-\nthough typically this evidence should be con-\nclosure, surely it is equally consonant with the\nsidered through a motion for a new trial, com-\nprincipies of FOIA to permit one who requests\npelling circumstances justify this court con-\ninformation to enlarge the record, especially\nsidering such developments. Cf. Carr V. Dis-\nwhere there is disturbing evidence of impro-\ntrict of Columbia, 177 U.S.App.D.C. 432, 444 &\npriety by the government.\nn.96, 543 F.2d 917, 929 & n.96 (1976) (where\nconsideration of new evidence time-barred un-\n12. Had the CIA mistakenly failed to recognize\nder Rule 60(b) and no other forum available to\nthe relevance of these documents, or had the\nconsider such evidence, court \"would consider\nlibrarian failed to inform the General Counsel\nwhether the interests of justice would not re-\nof her discovery, different, and more difficult\nquire\" remand to district court pursuant to 28\nissues would be posed. Here, however, the\nU.S.C. $ 2106).\nthree top legal officers of the CIA withheld the\nThe possibility that the CIA has disregarded\nfact that documents had been discovered which\nits responsibilities under the Freedom of Infor-\nthey knew to be relevant to this litigation. I\nmation Act presents a particularly appropriate\ncan imagine no clearer breach of duty to this\noccasion for the exercise of our s 2106 authori-\ncourt.\nty to require further proceedings. Under FOIA,\nas with any litigation, we adhere to \"the funda-\n13. Shotwell Mfg. Co. V. United States (Shotwell\nmental precept that issues on appeal are to be\nII), 371 U.S. 341, 358, 83 S.Ct. 448, 459, 9\nconfined to those duly presented to the trial\nL.Ed.2d 357 (1963).\ncourt\", Jordan V. Department of Justice, 192\n378\n607 FEDERAL REPORTER, 2d SERIES\ngiven \"insufficient priority,\" 14 is nothing\nSenior Circuit Judge, held that primary\nHe\nshort of a confession that it has been dere-\njurisdiction over the issue was vested in the\nwith\nlict in its duty to this court. Such behavior\nEnvironmental Protection Agency where\ningto\nis worthy only of censure.\nproceedings had been commenced to issue\nCur\nthe sewage treatment plant a National\nwith\nPollution Discharge Elimination System per-,\nKEY NUMBER SYSTEM\nmit.\nwas o\nurbar\nAffirmed.\nRie\nof M\nNavigable Waters 35\nMary\nWhere Environmental Protection\ngiene\nMONTGOMERY ENVIRONMENTAL CO-\nAgency had commenced proceedings to is\nGover\nALITION CITIZENS COORDINATING\nsue National Pollution Discharge Elimina-\nLou\nCOMMITTEE ON FRIENDSHIP\ntion System permit to sewage treatment\nW. B\nHEIGHTS et al., Appellants,\nplant, EPA was vested with primary juris-\nStiehl\nV.\ndiction over issue whether sanitary commis-\nC., for\nWASHINGTON SUBURBAN SANITARY\nsion had exceeded its allotted share of sew-\nBef\nCOMMISSION et al.\nage treatment capacity of such plant, re-\nsulting in violation of promulgated water\nKEY,\nNo. 78-1730.\nquality standards, and suit by citizens' envi-\nOpi\nUnited States Court of Appeals,\nronmental groups to enjoin sanitary com-\nON, o\nDistrict of Columbia Circuit.\nmission from exceeding its share of sewage\ntreatment capacity would therefore be dis-\nBA\nArgued Jan. 3, 1979.\nmissed. Federal Water Pollution Control\nFor\nDecided May 30, 1979.\nAct Amendments of 1972, §§ 101 et seq.,\nsion o\n301, 301(a), (b)(1)(C), 303, 505(a)(1), (c)(1),\ncomple\n33 U.S.C.A. §§ 1251 et seq., 1311, 1311(a),\ntal Co\nCitizens' environmental groups brought\n(b)(1)(C), 1313, 1365(a)(1), (c)(1).\nthe W\nsuit to enjoin a sanitary commission from\nmissio\nexceeding its allotted share of the sewage\nshare\ntreatment capacity at a sewage treatment\nthe B\nplant. The United States District Court for\n(Blue\nthe District of Columbia, John Lewis Smith,\nAppeal from the United States District\nflows\nJr., J., dismissed the action, and plaintiffs\nCourt for the District of Columbia. (D.C.\ncharge\nappealed. The Court of Appeals, Bazelon,\nCivil Action No. 1307-73).\nwhich\n14. The full text of the CIA's explanation is as\ntainty to what extent the documents found\nthe P\nfollows:\nby the law librarian were relevant to this\nfor th\nTo be sure, there is one regrettable aspect\nlitigation and because of the press of other\nthat *\nto the CIA's recent disclosures. Apparently\nbusiness. Moreover, as is clear from the\nattached CIA letters (Exhibits C, D, and E),\nings t\nthe Agency became aware of the existence of\ndocuments possibly relevant to Goland in the\nthe number of additional documents turned\ntion\nlate fall of 1977. See Exhibits C and E.\nout to be very great. The law librarian did\nnot complete her first partial inventory of the\n1. Ou\nDespite the pendency of this case before this\nCourt and plaintiffs' outstanding FOIA re-\nadditional documents until May 19, 1978. Id.\nmen\nquest, the documents were not compiled\nOpp. to Mot. to Vacate at\nof\n197\nitary\nU.S.App.D.C., at 369-370 of 607 F.2d.\n10,\nspeedily, and Justice Department counsel\ncour\nwere not informed of their existence. How-\n15. The CIA seeks to refute any suggestion of\never, this was not a \"strategy decision to\nbad faith by pointing to its disclosure, albeit\nstand mute,\" as claimed in plaintiffs' motion\n2. City\nbelated, of the documents after our opinion\nto vacate. As explained in the attached let-\nissued. Opp. to Mot. to Vacate at - n.3 of\nship\nter from the CIA's Office of General Counsel\n197 U.S.App.D.C., at 369 n.3 of 607 F.2d. I\nto Justice Department counsel (Exhibit E),\nconfess I am unable to find grounds for ap-\n1. Sp\ninsufficient priority was given to these addi-\nplause in the agency's tardy recognition of\nflow\ntional documents because there was uncer-\nlong-neglected legal and moral duty.\nsew\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 18, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTSQR\nSUBJECT:\nDisposition of James A. Baker, III\nPapers (Request from Norman Hackerman\nof Rice University)\nSome time ago Kathy Camalier asked for our advice concerning\nthe disposition of Mr. Baker's White House papers. Mr.\nBaker had received a letter from the President of Rice\nUniversity, asking that he agree to deposit the papers at\nRice. Mr. Baker's office informed Rice officials that the\nrequest was premature, but asked us to look into the matter,\nnoting that it \"is not a top priority inquiry.\"\nThe vast majority of Mr. Baker's papers are, of course,\ncovered by the Presidential Records Act, 44 U.S.C.\n§§ 2201-2207, since they were \"created or received by the\nPresident, his immediate staff, or a unit or individual of\nthe Executive Office of the President whose function is to\nadvise and assist the President, in the course of conducting\nactivities which relate to or have an effect upon the\ncarrying out of the constitutional, statutory, or other\nofficial or ceremonial duties of the President.\" 44 U.S.C.\n§ 2201 (2). The only papers from his White House tenure that\nMr. Baker could consider donating to Rice are, accordingly,\n\"personal records,\" defined in the Act to include \"diaries,\njournals, or other personal notes\" not used in transacting\nGovernment business, private political materials having no\nrelation to the President's duties, and materials relating\nsolely to the President's own election. Id. § 2201(3).\nWith respect to such \"personal records\" of Administration\nofficials, however, Mr. Meese's office has been working with\nthe Archivist to secure them for possible inclusion in the\nReagan Presidential Library. Mr. Meese's office asked us\nearlier this year to review a letter they prepared with the\nArchivist, asking Administration officials to donate personal\nmaterials to the National Archives for placement in the\nReagan Presidential Library. (We have been holding the\nletter in abeyance because of our many disputes with the\nArchivist and the unresolved status of the Reagan Library.)\nAny decision by Mr. Baker to donate his personal papers to\nRice would be inconsistent with the proposal to house those\npapers in the Reagan Library.\n- 2 -\nThe attached memorandum for Mr. Baker advises him that (1)\nhe can only consider donating his personal papers (as\ndefined in the Presidential Records Act) to Rice, and (2) it\nhas been proposed that such personal papers of staff members\nand Cabinet officials be donated to the National Archives\nfor inclusion in the Reagan Presidential Library.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 19, 1984\nMEMORANDUM FOR JAMES A. BAKER, III\nASSISTANT TO THE PRESIDENT\nCHIEF OF STAFF\nOrig. signed by FFF\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nDisposition of Your White House Papers\nYour office has requested guidance on inquiries you have\nreceived concerning the possible donation of your White\nHouse papers to Rice University. The vast bulk of your\nWhite House papers are covered by the Presidential Records\nAct, 44 U.S.C. §§ 2201-2207. That Act defines \"Presidential\nrecords\" broadly to include:\ndocumentary materials, or any reasonably segregable\nportion thereof, created or received by the President,\nhis immediate staff, or a unit or individual of the\nExecutive Office of the President whose function is to\nadvise and assist the President, in the course of\nconducting activities which relate to or have an effect\nupon the carrying out of the constitutional, statutory,\nor other official or ceremonial duties of the\nPresident. Id. § 2201 (2).\nPursuant to 44 U.S.C. § 2202, the Government retains \"complete\nownership, possession, and control of Presidential records.\"\nAt the end of a President's last term, the Archivist assumes\ncustody and control of the Presidential records. Id.\n§ 2203 (f) (1). Accordingly, you are not in a position to\nconsider donating those of your papers defined as Presi-\ndential records -- the vast majority -- to Rice or any other\ninstitution.\nYou do retain control over \"personal records of a purely\nprivate or nonpublic character,\" including \"diaries, journals,\nor other personal notes\" not used to transact Government\nbusiness, \"materials relating to private political associa-\ntions, and \"materials relating exclusively to the President's\nown election.\" Id. § 2201 (3) With respect to such materials\nof White House staff members and Cabinet officials, however,\nyou should be aware that Ed Meese's office has been working\nwith the Archivist on a proposal to secure their donation to\nthe National Archives for inclusion in the Reagan Presidential\nLibrary. It is the Archivist's view that the Reagan Presidential\n- 2 -\nLibrary would be considerably enriched by the inclusion of\nthe personal records of key Administration officials.\nMeese's office and the Archivist have prepared a draft\nletter to Administration officials, asking them to consider\ndonating their personal papers for inclusion along with\ntheir official papers in the Reagan Presidential Library.\nThat letter has not yet been sent because of certain outstanding\nissues involving the Archivist and the Reagan Library.\nThus, you may wish to consider that option as well.\nFFF: JGR:aea 9/19/84\nCC: FFFielding/JGRoberts/Subj/Chror\n222895\nID #\nCU\n21\nWHITE HOUSE\nFG006-01\nCORRESPONDENCE TRACKING WORKSHEET\no . OUTGOING\nH . INTERNAL\nJR This is an the intenting news\nI - INCOMING\nDate Correspondence\n/\nissue\nReceived (YY/MM/DD)\nName of Correspondent:\nKatherine Camalier\nJump\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Disposition of James a. Baker III\nRice Univ)\nPapers (request from norman Hackerman\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHolland\nORIGINATOR DD 184,0418\n1\n/\nReferral Note:\nCUAT78\nP\n584,04129\nReferral Note:\n1 1\n/\n/\nReferral Note:\n1 I\n1\nReferral Note:\n1 1\n1\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA\nAppropriate Action\nI Info Copy Only/No Action Necessary\nA\nAnswered\nc Completed\nC Comment/Recommendation\nR Direct Reply w/Copy\nNon-Special Referral\n6 Suspended\nD. Draft Response\nS For Signature\nF\nFurnish Fact Sheet\nX - Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response - Initials of Signer\nsee ID 151469\nDD\nCode - \"A\"\nCompletion Date - Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\nApril 17, 1984\n222895 ca\nMEMORANDUM TO:\nFRED FIELDING\nFROM:\nKATHERINE CAMALIER\nSUBJECT:\nDisposition of James A. Baker, III Papers\nSometime ago, Rice University contacted Jim Baker to inquire\nregarding the disposition of his White House and related\npapers at the conclusion of this term. We contacted Rice\nUniversity to advise them that any such request was premature\nand then set their letter aside. I have attached a copy of\ntheir letter for your further information.\nWould you, or a member of your staff, please let us know what,\nif any, papers, documents, etc. Mr. Baker can give to Rice\nUniversity? We are aware of the strict requirements outlined\nin the \"Presidential Records Act, but would appreciate any\nclarification of this. For example, we have kept extensive\n\"scrapbooks\" of newspaper articles, etc. that mention Jim\nBaker. We are assuming that this is \"personal property\" and\nthat Mr. Baker can, if he chooses, give these to Rice\nUniversity.\nThis is not a top priority inquiry at this time, but it is\nsomething that we will need to be aware of at some point down\nthe road. Thank you, in advance, for providing any pertinent\ninformation or explanation.\nRICE UNIVERSITY\nDiscuss LATER\nHOUSTON, TEXAS77001\nNORMAN HACKERMAN\nPRESIDENT\nMay 23, 1983\nMr. James A. Baker, III\nChief of Staff and Assistant\nto the President\nSERIOUSLY CONSIDERIN)\nThe White House\nGRACIOUS\n1600 Pennsylvania Avenue, N.W.\nWashington, D.C. 20500\nYoun offer\nDear Jim:\nwould Like\nI wonder if you have considered what disposition you will\nultimately make of your White House and related papers. It\noccurs to me that it might be mutually advantageous for them to\nDiscuss\nTo\nbe housed and catalogued here at Rice. We are committed to\nstrengthening our special holdings in the social sciences and\nhumanities and believe that the James A. Baker, III, Papers will\nAT\nA\nbe an important resource for scholars of the future to draw upon;\nand, of course, they would be conveniently located for you to\nLATER\nmonitor and use.\nIf you are receptive to this suggestion perhaps I could\nDATE\nvisit with you on one of my trips to Washington in the near fu-\nture; or, if you prefer, we would be happy to have you come on\ncampus the next time you are in Houston to discuss this in more\ndetail.\nI look forward to hearing from you.\nSincerely,\nIT'S Sujestad All Alons\nNH:jb What\nFiNAllY YOURSCRAPS FOR A Home\n(Hand-written notes\nDo iT!!\nby Margaret Tutwiler)\n8"
}

Survos folio page chat

Ask the Scholar

Page image

OCR

Page data

Document data

Context sent to Scholar