The 17 documents mentioned in the two previous paragraphs are not exempt under exemption 5. They reflect the deliberations of Congress, not the Agency, and Congress is not an agency under FOIA.
It appears from the remand, although not with certainty, that this Court was directed to consider the constitutional protection of the legislative process under the Speech and Debate Clause, Art. 1, Sec. 6, Cl. 1, at least as to some of the documents. 636 F.2d at 843. The Clerk of the House of Representatives made certain representations in this regard by letter to the CIA dated April 24, 1979, which is attached to this Memorandum, and has filed a memorandum in these remand proceedings as amicus. The parties have briefed the Speech and Debate Clause issue
which the Court now considers as it relates to the 17 documents covered in whole or in part only by a claim for exemption under 5.
These documents are in the custody of the CIA. The Court of Appeals found that there was insufficient proof that Congress intended to maintain control of them. Thus the issue is posed whether the CIA, which communicated with committees of the House on legislative matters clearly comprehended within the Speech and Debate Clause, may, at the request of the Clerk of the House of Representatives, assert that constitutional protection to prevent release of the communications where a member of the general public seeks through FOIA to subject that legislative process to examination.
The Speech and Debate Clause was designed to preserve legislative independence. There can be no dispute that while Congress is performing legislative acts its "deliberative and communicative" functions are protected as a matter of constitutional certainty from any intrusive action by the Executive or Judicial branches.
The CIA supplied certain information to the legislative investigations and was consulted by Congress in furthering strictly legislative objectives. A careful reading of the documents discloses not the slightest suggestion of impropriety on the part of Congress or the Agency. The legislative process was naturally concerned with protecting national security and both the Congress and the Agency scrupulously functioned within the constraints of this overriding consideration, which this FOIA plaintiff seeks to breach.
Release of the documents at issue here, which the Clerk after examining the documents seeks to protect, would appear to constitute a threat to legislative independence and would create a precedent that would impair the "deliberative and communicative" function of the legislative process. It is not necessary to reach this issue, however, because the considerations noted above are in any event not enough to permit the Court to withhold the documents under the Clause. No member of Congress or appropriate representative has come forward as a party to raise the issue. The Clerk appears merely as amicus and his representations are general, posing no concrete case or controversy. If the House of Representatives desires to protect this type of material it must act affirmatively, either by resolution in particular cases such as this, by decisive timely action asserting custody, or by appropriate amendment to FOIA.
Accordingly summary judgment is granted in favor of plaintiff but only insofar as it relates to those portions of documents numbered 4, 8, 11, 12, 18, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 35 and 54 claimed to be exempt only under exemption 5. In all other respects the plaintiff's motion for summary judgment is denied and the motion for summary judgment of the defendants is granted.
An appropriate Order is filed herewith.
Office of the Clerk U.S. House of Representatives Washington, D.C. 20515
April 24, 1979
Honorable Stansfield Turner
Central Intelligency Agency
Washington, D.C. 20505
Dear Mr. Director:
This is in reference to Holy Spirit Association for the Unification of World Christianity v. CIA, C.A. No. 79-0151, a civil suit currently pending before the United States District Court for the District of Columbia.
The Rules of the House of Representatives vest in the Clerk of the House the responsibility for the maintenance of House records and documents. It would be inconsistent with the rules and procedures of the House of Representatives for the defendant executive agency to release that portion of the requested material which is comprised of material constituting documents of the United States House of Representatives including agency prepared documents reflecting or incorporating specific congressional investigative or oversight requests; therefore, as the elected officer of the body charged with responsibility in this area, I formally object to any such release. Furthermore, if the court before which this matter is pending contemplates the issuance of an order requiring the production of these documents the congressional entities involved wish to reserve their right to address the court on this matter through their appropriate legal representatives.
EDMUND L. HENSHAW, JR., Clerk
U.S. House of Representatives
Attachment to Court's Memorandum dated January 12, 1983.
For the reasons set forth in the Court's Memorandum filed herewith, it is hereby
(1) Plaintiff's motion for summary judgment is granted in part as follows: those portions of documents numbered 4, 8, 11, 12, 18, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 35, and 54 which were marked as exempt solely by reason of exemption 5 when submitted to the Court in camera shall be and hereby are ordered released to plaintiff;
(2) In all other respects plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted.