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CENTER FOR NATL. SEC. STUDIES v. CIA

December 20, 1983

CENTER FOR NATIONAL SECURITY STUDIES, et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants



The opinion of the court was delivered by: SMITH

 Plaintiff Center for National Security Studies brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against defendant Central Intelligence Agency. Currently before the Court are cross-motions for partial summary judgment with respect to Count IV of the complaint.

 Plaintiff in Count IV seeks access to certain materials prepared by defendant in the course of a 1975-76 investigation of the United States intelligence community by the House Select Committee on Intelligence (the "Pike Committee"). In particular, plaintiff seeks to obtain a letter, written by defendant's special counsel, with attached materials, setting forth the intelligence community's response to a draft report prepared by the Committee. This document, known as the "Rogovin Report," was submitted to the Pike Committee by defendant on January 20, 1976. Defendant retained a copy of the Rogovin Report in its files. See Affidavit of Lavon B. Strong at para. 10 (hereinafter "Strong Affidavit").

 Following completion of the Pike Committee investigation, and a decision by the full House of Representatives against publishing the Committee's report, Committee Chairman Pike and Director of Central Intelligence Bush entered into a written agreement concerning CIA storage of sensitive materials originated by the Committee or furnished to the Committee by the intelligence community. Under the terms of the arrangement, as set out in Chairman Pike's letter of February 20, 1976, and accepted in Director Bush's letter of February 25, 1976, Pike Committee documents, including the original Rogovin Report, were placed in sealed cartons and taken to CIA facilities for safekeeping. In addition, Chairman Pike specified that the materials:

 
"are placed in [CIA] custody with the explicit understanding that they will not be disturbed, that the cartons containing these materials will not be opened nor their contents examined except on further authorization from the House of Representatives or the Speaker of the House." (Affidavit Exhibits C, D)

 On at least three subsequent occasions, certain members of the House corresponded with defendant and others about the arrangement. On April 1, 1976, Speaker Albert denied defendant access to the materials, stating that "it is undisputed that these files are the property of the House." (Affidavit Exhibit F.) In 1979 and 1982, Chairman Boland of the House Permanent Select Committee on Intelligence ("HPSCI"), the successor to the Pike Committee, learned of FOIA litigation involving the materials. On July 13, 1979, Chairman Boland informed Attorney General Bell and Director Turner that "agency documents which were prepared in response to the Pike Committee inquiries and made available to that Committee are Pike Committee documents," to be released only upon the "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.

 I.

 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). *fn1" 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.

 In brief, if there are "manifest indications that Congress intended to exert control over the documents in an agency's possession," a court must find that the documents are "congressional records," not subject to FOIA's disclosure requirements. Id. at 693. See also Goland, supra, 607 F.2d at 347; Holy Spirit Ass'n, supra, 636 F.2d at 840-42; McGehee v. CIA, supra, 697 F.2d at 1107-08 & n.50; Ryan v. Dep't of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 785-86 (D.C.Cir. 1980); Allen v. Dep't of Defense, 580 F. Supp. 74 (D.D.C. 1983), slip op. at 6-11; Letelier v. United States Dep't of Justice, CA No. 79-1984 (D.D.C. March 31, 1982), slip op. at 16-17; Miller v. CIA, 2 GDS P 81,174 (D.D.C. 1981); Dunaway v. Webster, 519 F. Supp. 1059, 1073-74 (N.D.Cal. 1981); Navasky v. CIA, 499 F. Supp. 269, 278 (S.D.N.Y. 1980), aff'd, 679 F.2d 873 (2d Cir. 1981).


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