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March 2, 1994

D. MARK KATZ, Plaintiff,

The opinion of the court was delivered by: THOMAS A. FLANNERY

 This is an action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, by which plaintiff, author D. Mark Katz, seeks to challenge a decision of the National Archives and Records Administration ("the Archives") to withhold certain autopsy records *fn1" of President John F. Kennedy.

 I. Procedural History

 By order dated December 16, 1992, Judge Revercomb converted the Archives' motion to dismiss for failure to state a claim into a motion for summary judgment. The Court ordered the parties to file supplemental briefs addressing the effect, if any, of the President John F. Kennedy Assassination Records Collection Act of 1992 ("ARCA"), Pub. L. No. 102-526, 106 Stat. 3443 (1992), on plaintiff's FOIA claim, as well as any other issues of importance to the case. The ARCA was signed into law on October 26, 1992. Subsequent to the Court's order, the parties filed cross-motions for summary judgment and oral argument was heard before Judge Revercomb. The case was reassigned to this Court following Judge Revercomb's death and is now before the Court on the parties' cross-motions for summary judgment.

 II. Factual background

 On November 22, 1963, President John F. Kennedy was assassinated in Dallas, Texas. Later that day, an autopsy was performed on the President's body at the National Naval Medical Center in Bethesda, Maryland. The autopsy photographs and a number of x-rays of the deceased president were taken by Navy personnel during the autopsy and on the same night turned over to Secret Service Agent Kellerman. The photographs and x-rays remained in the custody of the Secret Service from November 22, 1963, until April 26, 1965.

 On April 22, 1965, Senator Robert F. Kennedy wrote to Vice Admiral George G. Burkley, personal physician to the president, the following letter:

this will authorize you *fn2" to release to my custody all of the material of President Kennedy, of which you have personal knowledge, and now being held by the Secret Service.
I would appreciate it if you would accompany this material personally and turn it over for safekeeping to Mrs. Evelyn Lincoln at the National Archives. *fn3" I am sending a copy of this letter to Mrs. Lincoln with instructions that this material is not to be released to anyone without my written permission and approval. (emphasis in original)

 On April 26, 1965, Admiral Burkley transferred the Kennedy materials to Mrs. Lincoln by letter which stated that the transfer was "in accordance with the instructions contained in Senator Kennedy's letter." Robert I. Bouck, Special Agent in Charge, in a memorandum to his chief, detailed the transfer of the autopsy materials, noting that he and Admiral Burkley "personally transported" the material "to the Archives Building where they were turned over to Mrs. Evelyn Lincoln." The materials included the autopsy photographs and x-rays now at issue in this case.

 By written instrument dated October 29, 1966 ("Deed of Gift"), the executors of the estate of President Kennedy, pursuant to provisions of the Presidential Libraries Act of 1955, 44 U.S.C. § 397(e)(1), *fn4" donated, as historical materials, the autopsy photographs, x-rays, and other material relating to the assassination of the president. *fn5" Lawson B. Knott, Jr., then Administrator of General Services, accepted the donation on behalf of the United States, subject to certain restrictions on access to the materials as detailed in the Deed of Gift.

 On October 31, 1966, Professor Burke Marshall, representative of the Kennedy estate, delivered to the Archives the autopsy materials outlined in the Deed of Gift. According to a memorandum detailing the delivery, the materials were in a locked footlocker that had been kept by Mrs. Lincoln. No key had been previously delivered with the footlocker. On October 31, 1966, Senator Kennedy's secretary, Miss Angela Novello, produced a key to the footlocker whereupon its contents were removed and inspected.

 Plaintiff filed a FOIA request with the National Archives in January 1992, seeking access to "any and all photographs relevant to the [Kennedy] autopsy obtained Friday/Saturday, November 22/23, 1963." Plaintiff's request was denied on the grounds that the photographs had been donated to the Archives in 1966 by the executors of the Kennedy estate through the Deed of Gift, and that the Deed, rather than the FOIA, governed access to the material. The Archives denied plaintiff's subsequent appeal. Plaintiff brought this action in April of 1992.

 III. Legal Issues

 In deciding a motion for summary judgment, the Court must consider whether there are any genuine issues of material fact. If so, then summary judgment is not appropriate. There are no material facts in dispute here; thus, only issues of law remain. See Fed.R.Civ.P. 56(c) (setting forth summary judgment standard).

 The FOIA confers jurisdiction on district courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." U.S. Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S. Ct. 2841, 2846, 106 L. Ed. 2d 112 (1989) (citing 5 U.S.C. § 552(a)(4)(B)). The district court lacks jurisdiction to force an agency to comply with the disclosure requirements if there is no showing that an agency has (1) improperly (2) withheld (3) agency records; an agency must contravene all three requirements. Id., citing Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 100 S. Ct. 960, 968, 63 L. Ed. 2d 267 (1980). The agency bears the burden of demonstrating that the materials sought are not "agency records" or have not been improperly withheld. Tax Analysts, 109 S. Ct. at 2846 n.3 (citations omitted).

 As plaintiff asserts, the critical question in this case is whether the autopsy photographs are "agency records" under the FOIA. If the answer is no, then the plaintiff cannot prevail in this FOIA suit. If the photographs are agency records, then the question becomes whether the Archives must disclose them under the terms of the FOIA.

 For the reasons discussed below, the Court finds that the autopsy photographs are not agency records because the Archives does not have control over them. The Court, therefore, does not have jurisdiction in this FOIA case and plaintiff's suit must be dismissed. Alternatively, if the photographs are agency records, the Archives was justified in withholding them as the photographs fall within Exemption 6 of the FOIA.

 A. Agency records

 The Supreme Court has articulated a two-part test for determining when records are agency records. Tax Analysts, 109 S. Ct. at 2847. Tax Analysts held that in order for a record to be considered an agency record subject to the FOIA, the record must both have been created or obtained by an agency and the "agency must be in control of the requested materials at the time the FOIA request is made." Id. at 2847-48. An agency has "control" over ...

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