The opinion of the court was delivered by: CHARLES R. RICHEY
Before the Court is the Plaintiffs' Motion to Compel the production of a Vaughn index for materials located with the Defendant Archivist pursuant to a Protective Order entered in United States v. Weinberger. Caspar Weinberger has filed a Motion to Intervene for the purpose of opposing the Plaintiffs' Motion, which the Court shall grant as unopposed.
After careful consideration of the Motion to Compel, all the papers filed by the parties, the underlying law, and the entire record in this action, the Court shall grant the Plaintiffs' Motion to Compel and shall order the Defendants to produce a Vaughn index for these materials.
The Plaintiffs brought this suit against the Executive Office of the President, the National Security Council, and the Archivist of the United States, inter alia, under the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324, the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., and the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. The Plaintiffs' request for relief was twofold. First, they requested that the Defendant agencies' record keeping guidance for the management of electronic records, such as e-mail, be declared invalid because the guidelines permitted the destruction of records contrary to the FRA. Second, the Plaintiffs requested disclosure under FOIA of various materials preserved on the Defendants' electronic communication systems.
In an Opinion dated January 6, 1993, the Court granted the Plaintiffs summary judgment as to their FRA claim and ordered the Defendants to promulgate new guidelines for the management of electronic federal records. Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993). The Court of Appeals for the District of Columbia Circuit affirmed that decision and remanded the case to this Court on a variety of issues. See Armstrong v. Executive Office of the President, F.2d , 1993 WL 304567 (D.C. Cir. Aug. 13, 1993).
II. THE PLAINTIFFS' MOTION TO COMPEL
The Plaintiffs' latest Motion requests that the Defendants be compelled to prepare a Vaughn index pursuant to FOIA for materials obtained by Caspar Weinberger in the criminal case United States v. Weinberger, Cr. Nos. 92-235 and 92-416.
In response to a subpoena issued in the Weinberger case, the White House Communications Agency performed a "keyword" search of a subset of the computer tapes which had been preserved by Order of this Court in the Armstrong litigation. The search yielded 457 notelogs and 1,046 other documents. See Plaintiffs' Motion to Compel at 4-5. These materials were then printed out in "hard," or paper, copy and turned over to Mr. Weinberger to assist in his defense in the criminal action. Due to the classified nature of the materials, they were released to Mr. Weinberger by the Government subject to a Protective Order pursuant to the Classified Information Procedures Act, 18 U.S.C. App. IV. § 3. See Protective Order, Exhibit B, Defendants' Opposition. The Protective Order was later modified in that the materials were moved to the Archives. Modification of Protective Order, Exhibit A, Defendants' Opposition.
These materials were originally kept at a "sensitive compartmentalized information facility accredited for the storage, handling and control of classified information." Id. at 2.
In their Motion, the Plaintiffs contend that the materials printed in paper format pursuant to the subpoena in Weinberger include materials that they have requested under FOIA.
The Plaintiffs claim that because this material has now been printed out in paper format and is now in the custody of the Archivist, the Defendants is obligated to prepare a Vaughn index of this material so that the Plaintiffs' FOIA claim for paper records can be resolved in its entirety. The Court agrees.
III. THE WEINBERGER MATERIALS HERE ARE SUBJECT TO FOIA BECAUSE THEY ARE RECORDS IN THE POSSESSION OF A GOVERNMENT AGENCY AND BECAUSE THE PROTECTIVE ORDER ISSUED BY JUDGE HOGAN IN THE WEINBERGER CRIMINAL CASE DOES NOT EXEMPT THE WEINBERGER MATERIALS FROM DISCLOSURE UNDER FOIA.
A. The Weinberger materials are agency records in the possession of the Government and therefore are subject to FOIA.
It is undisputed that the Weinberger materials at issue here were printed out by the Government from the computer tapes in question in this litigation. Therefore, it is clear that these materials include records created by the Government agencies sued as Defendants in this litigation and that these records may be responsive to the Plaintiffs' FOIA request. In addition, it is undisputed that the Weinberger materials are currently in the custody of the Archivist, which is a Government agency and a Defendant in this litigation. Accordingly, the Court concludes that these materials are subject to FOIA because they were created by a Government agency and are under the control of a Government agency at the time of the FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-55, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989). The fact that these records were originally in the possession of the National Security Council before and are now in the custody of the Archivist does not prevent them from being subject to FOIA. See McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1109, modified on reh'g, 229 U.S. App. D.C. 148, 711 F.2d 1076 (D.C. Cir. 1983) (the mere transfer of records from one agency to another does not exempt records from FOIA).
B. The Protective Order issued by Judge Hogan in the Weinberger case does not exempt them from disclosure under FOIA.
The Defendants and Mr. Weinberger contend that disclosure of this material under FOIA is barred by a Protective Order entered by Judge Hogan in Weinberger. Morgan v. Department of Justice, 287 U.S. App. D.C. 372, 923 F.2d 195, 197 (D.C. Cir. 1991) (a court order sealing records supersedes an agency's obligation to disclose records under FOIA where the order was issued with the intent to prohibit disclosure); see GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386-87, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980). They contend that the Protective Order, by its terms, bars disclosure of this material to anyone other than Mr. Weinberger or his designee. Furthermore, Mr. Weinberger maintains that, under the terms of the Protective Order, these materials are within his control, not the Government's, and therefore these records are not subject to FOIA.
However, the Government and Mr. Weinberger's reliance on the Protective Order is misplaced. Our Court of Appeals in Morgan stated that, in deciding whether a court order prevents an agency from disclosing records under FOIA, the question is whether the court order at issue intended to prohibit the agency from disclosing the records. Morgan, 923 F.2d at 197. Furthermore, the agency must demonstrate that the order prohibits it from disclosing the records. Id. The Court concludes that the Government has not shown that the Protective Order in the Weinberger case prohibits disclosure of the material at issue here for several reasons.
First, the plain language of the Protective Order here does not prohibit disclosure of these materials under FOIA. The plain language of the Protective Order directs that the materials be "preserved at the National Archives for historical purposes." Modification of Protective Order, P 1, Exhibit A, Defendants' Opposition. It also states that the Weinberger information "is now and will remain the property of the Government." Protective Order, P 11, Exhibit B, Defendants' Opposition. Giving plain meaning to this language, the Court concludes that the information here is the property of the Government and that it was intended for historical preservation.
Furthermore, the Court notes that the Protective Order provides that "any document received by defendant in discovery from any United States Government agency or entity shall be presumed to contain classified information until otherwise determined by the appropriate agency or entity." Id. P 2 a. Therefore, instead of being barred from releasing this material, the Government was given the responsibility of deciding whether this information should remain classified.
Second, the clear purpose of the Protective Order does not prevent disclosure of this material under FOIA. The Protective Order in Weinberger was issued pursuant to the Classified Information Procedures Act ("CIPA"), whose purpose was to harmonize a criminal defendant's right to exculpatory material with the Government's right to protect classified information. 18 U.S.C. App. IV § 3 (the court shall issue an order to protect against the disclosure of any classified information disclosed by the United states to any defendant); see United States v. Wilson, 571 F. Supp. 1422 (S.D.N.Y. 1983).
Furthermore, the CIPA does not limit an agency's decision making power as to the fate of classified materials disclosed to a defendant under the CIPA. 18 U.S.C. App. IV § 9, Historical Note 11) (After criminal proceedings are concluded, the originating agency shall determine the final disposition of classified materials under the CIPA). Therefore, it is clear that the Protective Order here was designed to give Mr. Weinberger every opportunity to defend himself in the criminal case before judge Hogan while, at the same time, protecting the Government's right to keep these materials classified. However, it is also clear that the Protective Order was not intended to act as an limitation on the Government's ability to determine the final disposition of these classified materials. The Protective Order states that these materials may be subject to later disclosure and in no way limits the access of any party to this material under FOIA. Our Court of Appeals has made clear that a limitation on the method of access to certain records is not synonymous with a prohibition on their future releases. See Morgan, 923 F.2d at 197. This is especially true where, as here, the Protective Order by its terms leaves future decisions as to the classified nature of the material to the appropriate Government agency.
The only materials clearly intended to be exempt from FOIA include trial materials prepared by defense counsel for Mr. Weinberger. However, the Court notes that the Plaintiffs did not request this material. They simply ask the Government to search the Weinberger materials for documents responsive to their FOIA request and to prepare a Vaughn index of those materials that are responsive to the request but which the Government will not release.
C. The fact that these records were printed out in paper form while the Plaintiffs' FOIA request was pending does not relieve the Government of its obligation to process these records under FOIA.
The Defendants argue that the plaintiffs are beyond the bounds of FOIA in demanding paper records that were converted from electronic to printed form in December, 1992, where plaintiffs had submitted their revised FOIA request in February, 1992. The Defendants contend that a broad application of FOIA requests would require the perpetual updating of these requests.
The Court does not agree. When conducting a search for responsive documents under FOIA, an "agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation." McGehee v. Central Intelligence Agency, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1101 (D.C. Cir. 1983) (standard of reasonableness governs the adequacy of an agency's response to a FOIA request). In this case, the Court concludes that the Government has failed to meet its burden of reasonableness, and therefore, the Court shall not shield this material from FOIA. Id. at 1100. The Defendants here have not advanced sufficient factual support to justify why it is reasonable to exclude the material in question from FOIA. Given that the Plaintiffs' FOIA claim in this case remains sub judice, the Court does not believe that the Plaintiffs' request for a Vaughn index of the Weinberger materials is untimely. In addition, the Court believes that such a request is reasonable because these documents are easily accessible, having been printed months ago, and because the request here is discrete and limited in scope.
The Court concludes that the materials printed out in hard copy pursuant to subpoena in United States v. Weinberger are subject to the FOIA. Accordingly, the Court shall grant the Plaintiffs' Motion to Compel production of a Vaughn index for these materials. Nothing in the foregoing shall preclude the Defendants from asserting any of the Exemptions under FOIA in connection with the Weinberger materials. The Court merely holds that these materials are within the jurisdiction of the Court and are subject to the provisions of FOIA.
The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.