"express written authorization of this Committee." (Affidavit Exhibit G.) In October 1982, Chairman Boland learned of this litigation. Characterizing plaintiff's Count IV request as involving "Intelligence Community comments on a draft of the report of the [Pike Committee]," Chairman Boland stated on October 27 that "these documents are now the property of the Permanent Select Committee on Intelligence and therefore of the House of Representatives. They should not be released in any way without the express permission of the Committee." (Affidavit Exhibit B.) On March 4, 1983, defendant furnished to plaintiff a copy of Chairman Boland's October 27 letter, and informed plaintiff that, in its view, "control over the Rogovin Report rests with the Congress of the United States rather than the CIA," and therefore, the Report is a "congressional document," "not subject to the disclosure requirements of FOIA." (Defendant's Memorandum Exhibit A.)
Plaintiff, however, is not seeking the original Rogovin Report, but rather the duplicate defendant claims it maintained for recordkeeping purposes. This case consequently presents an unusual but narrow issue: whether a 1) duplicate, retained at all times by an agency, and never physically transferred to Congress, of a 2) document prepared and submitted by the agency to Congress, and subsequently returned to the agency under express Congressional directives prohibiting its disclosure and use, is an "agency record" within the meaning of the Act. Upon consideration, the Court concludes that the Rogovin Report is not an "agency record" and therefore is not subject to disclosure under FOIA.
Under § 552(a)(4)(B) of FOIA, a federal district court has jurisdiction to compel agency disclosure of documents only "upon a showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) ' agency records'." Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980) (emphasis supplied). Neither FOIA nor its legislative history, unfortunately, "provides an adequate definition of ['agency records']." Paisley v. CIA, 229 U.S. App. D.C. 372, 712 F.2d 686, 692 (D.C.Cir. 1983). See also FBI v. Abramson, 456 U.S. 615, 626, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982); Forsham v. Harris, 445 U.S. 169, 182, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980); McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1106 (D.C. Cir. 1983), modified in other respects on reh'g, 229 U.S. App. D.C. 148, 711 F.2d 1076 (1983). The Supreme Court and the Court of Appeals, however, have established certain guidelines to be considered before a document is treated as an "agency record." First, "mere physical location of papers and materials [does not] confer [agency record] status.", Kissinger v. Reporter's Committee for Freedom of the Press, supra, 445 U.S. at 157. Rather, an agency must either " create or obtain a record as a prerequisite to its becoming an 'agency record' within the meaning of the FOIA," Forsham v. Harris, supra, 445 U.S. at 182 (emphasis supplied). See generally Wolfe v. Dep't of Health and Human Services, 229 U.S. App. D.C. 149, 711 F.2d 1077, 1079-82 & n.6 (D.C.Cir. 1983). Second, "an agency cannot have 'obtained' documents until it has possession or control over them." Id. at 1079. Third, agency possession of a document, however, does not " per se dictate that document's status as an 'agency record'." Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 345 (D.C.Cir. 1978) vacated in part on other grounds, 607 F.2d 367 (D.C.Cir. 1979), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). See Wolfe v. Dep't of HHS, supra, 711 F.2d at 1079 n.6. Under certain circumstances, records in an agency's possession "may nonetheless be congressional documents as opposed to agency records, and so be exempt from disclosure under FOIA," Paisley v. CIA, supra, 712 F.2d at 692 (emphasis supplied).
See also McGehee v. CIA, supra, 697 F.2d at 1107 & n.50; Holy Spirit Ass'n for Unification of World Christianity v. CIA, 205 U.S. App. D.C. 91, 636 F.2d 838, 840 (D.C.Cir. 1980), other portions of decision vacated and remanded as moot, 455 U.S. 997, 102 S. Ct. 1626, 71 L. Ed. 2d 858 (1982). In summary, a document may be within the physical possession of an agency, but it is not subject to disclosure if it is treated as a "congressional record." Resolution of this case turns on whether the Rogovin Report, by virtue of the express Congressional directives regarding its storage and disclosure, is such a "congressional record."
On several occasions, the Court of Appeals has directly addressed the questions presented by agency possession of documents generated by Congress. The Court has identified two "special policy considerations" that mandate unique treatment: FOIA disclosure requirements should not force Congress to "abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents [with agencies]) . . . ." McGehee v. CIA, supra, 697 F.2d at 1107-08 (footnote omitted). See also Goland v. CIA, supra, 697 F.2d at 346; Paisley v. CIA, supra, 712 F.2d at 693 n.30. Consequently, the Court in Goland held that documents, originating in Congress but in possession of an agency, should be treated as agency records where "under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides." 607 F.2d at 347. The inquiry focuses on Congress' "intent to retain control over the document," Holy Spirit Ass'n for Unification of World Christianity v. CIA, supra, 636 F.2d at 840, and, as recently explained by the Court:
"Two factors are considered dispositive of Congress' continuing intent to control a document: (1) the circumstances attending the document's creation, and (2) the conditions under which it was transferred to the agency." Paisley v. CIA, supra, 712 F.2d at 692.