left the possession of the agency, but were reviewed by the Committee at CIA headquarters. And indeed, a large category of the documents were requested by the Committee, but were never reviewed by Committee staff. [Category 1b]. Such records cannot reasonably be construed as congressional. They are agency records. Accordingly, defendants' argument that this portion of the Committee compilation is exempt from disclosure as a "congressional record" must be rejected.
D. Improper Withholding of the Documents
The fact that agency generated or preexisting agency records are not congressional does not end this inquiry, for the defendants make a number of alternative arguments. First, the defendants argue that the CIA compilation, in its entirety, may not be disclosed because it is not improperly held within the meaning of FOIA. Section 552(a)(4)(B) of FOIA grants the district court jurisdiction to enjoin agency records and to order the production of any agency records "improperly withheld." The CIA argues that it has not improperly withheld the documents because it has complied with its express understanding with Congress that the documents be sequestered and be unavailable to the public.
The defendants appear to be saying that even if the documents are not congressional under Goland/Holy Spirit, the Memorandum of Understanding reflects Congress' demand that the agency not release the documents. This, in turn, according to the defendants, insulates the agency from being compelled to produce the documents through a FOIA request.
The defendants refer the court primarily to GTE Sylvania, Inc. v. Consumer's Union of the United States, 445 U.S. 375, 384, 100 S. Ct. 1194, 1200, 63 L. Ed. 2d 467 (1980) as support for this rather unique argument. In that case, the Court found that documents were not "improperly withheld" where a court order prohibited the agency from disclosing them. The defendant here wishes to analogize the Memorandum of Understanding in this case to the court order in Consumer's Union, and argues that the Memorandum divests the CIA of discretion to grant plaintiff's requests.
However, the court has already determined that the Memorandum does not insulate the vast majority of the records at issue here from FOIA. If this court were to endorse defendants' argument, it would destroy the carefully constructed and strictly applied Goland/Holy Spirit test, and replace it with a test that would require mere agreement between the agency and Congress. The court finds that the records are "improperly withheld" if the agency fails to disclose them, unless they are covered by an exemption found within FOIA, or are exempt under the Goland/Holy Spirit formula. Defendants' argument is therefore rejected.
E. Interagency Memorandum Exemption
Finally, the CIA argues that even if the compilation, or parts thereof, are agency records, these agency records are exempt from disclosure under exemption five of FOIA. The DIA joins the CIA in making this argument.
This exemption exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Several courts have found that the language of exemption 5 does not apply to Congress, because Congress is not an agency within the meaning of that section. In Agee v. Central Intelligence Agency, 2 GDS P 81364 (D.D.C.1981), the court found that exemption 5 did not apply to several communications between Congress and the CIA which originated in Congress, "since Congress is not an agency within the terms of the statute." See also Holy Spirit Ass'n for the Unification of World Christianity, No. 79-151 (D.D.C. Jan. 12, 1983) slip op. at 5. Similarly, in Navasky v. Central Intelligence Agency, 499 F. Supp. 269, 277-78 (S.D.N.Y.1980), the court found that certain CIA documents prepared in response to specific questions from a congressional committee were not exempt under exemption 5 because Congress is not an agency.
Although the language of exemption 5 would seem not to apply to Congress under any circumstances, the court of appeals has indicated that, at least in some circumstances, it does apply. Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781 (D.C.Cir.1980). Ryan concerned certain questionnaires about potential judicial appointees that the Department of Justice had sent to Congressmen. After the questionnaires were completed and returned to the Department, they were subject to a FOIA request. The court of appeals found that the records were agency records. The court then went on to determine whether the records were exempt under exemption 5. The court found that the documents were exempt except for factual segments that did not reveal the deliberative process. Id. at 790. In so holding, the court did not find that agency-congressional exchanges are always exempt under exemption 5 but stated:
When interpreted in light of its purpose, however, the language of exemption 5 clearly embraces this situation. The exemption was created to protect the deliberative process of the government, by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision-makers without fear of publicity.
Id. at 789.
This court finds that exemption 5 may, in an appropriate case, be applied to agency-congressional communications. See also Letelier v. Department of Justice, No. 79-1984 (D.D.C. March 31, 1982); Paisley v. Central Intelligence Agency, No. 80-0038 (D.D.C. May 13, 1982), slip op. at 5-6. However, the exemption 5 issue is not suitable for summary judgment at this time. The cautious approach of the court of appeals in Ryan requires this court to examine the particular documents at issue, and the degree to which the disclosure of those documents would affect the quality of decisions made by the agency or by Congress. See Ryan, supra at 791. This court cannot, on the record and affidavits before it, determine whether any document, or category of documents, "reflect[s] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29 (1975), quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966). Exemption 5 protects only the predecisional deliberative process within agencies in which opinions are expressed and policies formulated and recommended. Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1341 (D.C.Cir.1969). Its application depends upon the individual document, and the role that document plays in the administrative process. Playboy Enterprises, Inc. v. Department of Justice, 219 U.S. App. D.C. 343, 677 F.2d 931, 935-36 (D.C.Cir. 1982).
The Executive Branch defendants, CIA and DIA, argue that all the documents disclose the deliberative process of government, and accordingly such documents are exempt from disclosure under exemption 5. However, the defendants' request sweeps far too broadly. It is questionable whether the agency can demonstrate that preexisting agency records released to Congress may fall within exemption 5. It is unlikely that such investigatory records, or internal memoranda become, when viewed by Congress, the predecisional, deliberative type of information protected under that exemption. And, in any event, the agency has not supported its motion by reference to the documents themselves.
Nor has the agency attempted to segregate factual from deliberative material. With respect to exemption 5, the courts have long held that it does not protect "purely factual material appearing in . . . documents in a form that is severable without compromising the private remainder of the documents." EPA v. Mink, 410 U.S. 73, 91, 93 S. Ct. 827, 837-38, 35 L. Ed. 2d 119 (1973); Ryan, supra at 790. Accordingly, the defendants' argument that the compilation of documents is exempt under exemption 5 must be rejected at this time.
F. Speech and Debate Clause
The Clerk of the House of Representatives, as amicus, argues that the Speech or Debate Clause of the Constitution exempts all categories of CIA and DIA documents from disclosure. The Executive Branch defendants have not endorsed this argument, and indeed, have opposed it in their motion.
The Speech or Debate Clause provides that congressmen "for any Speech or Debate in either House, . . . shall not be questioned in any other place." The Clerk submits that the clause is grounded in the constitutional protection for legislative deliberations and is triggered in this instance. Essentially, the Clerk argues that to disclose any of the materials sought by plaintiff would intrude so deeply into Congress' responsibility to consider and pass legislation that the prohibition against "questioning" the legislative process would be contravened.
The Speech or Debate Clause shields matters which are "a integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." United States v. Gravel, 408 U.S. 606, 625, 92 S. Ct. 2614, 2627, 33 L. Ed. 2d 583 (1972).
The Clerk argues that the documents at issue here expose the deliberative process. The Executive Branch defendants join the plaintiff in arguing that the Clause does not protect these documents, and that the legislative process would not be impaired by the disclosure of the documents. The court finds that it need not resolve the dispute, or decide whether the Clause may be extended to insulate these documents from FOIA disclosure. The Clerk has been, on its own motion, dismissed as a party defendant. The Clerk appears merely as amicus. No member of the House of Representatives has sought to intervene as a party in this action or has alleged impairment of the legislative process as a result of plaintiff's FOIA requests.
Therefore, the court finds no need to adopt or reject the arguments made by the Clerk, or to determine whether the Speech or Debate Clause extends to these documents. See Holy Spirit Ass'n for the Unification of World Christianity v. Central Intelligence Agency, 558 F. Supp. 41, 44 (D.D.C. 1983), slip op. at 6-7.