The opinion of the court was delivered by: RICHEY
STATEMENT OF QUESTION PRESENTED
A. THE RECORDKEEPING STATUTES
B. THE STRUCTURE OF THE NATIONAL SECURITY COUNCIL
I. THE "LAW OF THE CASE" DOCTRINE DOES NOT BAR THE COURT FROM DECIDING THE STATUS OF THE NSC BECAUSE THE ISSUE HAS NOT BEEN PREVIOUSLY DECIDED
II. THE COURT FINDS THAT THE NSC IS AN AGENCY BECAUSE THE NSC IS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH AND EXERCISES SUBSTANTIAL INDEPENDENT AUTHORITY SUCH THAT IT DOES NOT SOLELY RENDER ADVICE AND ASSISTANCE TO THE PRESIDENT
A. The NSC Meets The First Prong Of The Agency Test Because It Is An Establishment In The Executive Branch That Has A Separate Staff And A Firm Structure
B. The NSC Meets The Second Prong Of The Agency Test Because It Exercises Substantial Independent Authority Through The Performance Of The Traditional Agency Tasks Of Rulemaking And Adjudication, And Because It Performs Many Functions Independently Of the President
1. The NSC Performs The Traditional Agency Functions Of Rulemaking And Adjudication
2. The NSC Exercises Substantial Authority Independently Of The President In Key Policy Areas
III. THE COURT'S FINDING THAT THE NSC IS AN AGENCY FOLLOWS THIS CIRCUIT'S PRECEDENT
IV. IN FINDING THAT THE NSC IS AN AGENCY, SUBJECT TO THE FOIA, THE COURT HOLDS THAT THE NSC MUST MAINTAIN AND PRESERVE ITS RECORDS IN ACCORDANCE WITH THE FEDERAL RECORDS ACT, EXCEPT WHEN HIGH LEVEL OFFICIALS OF THE NSC ACT SOLELY TO ADVISE AND ASSIST THE PRESIDENT. IN THAT LIMITED CIRCUMSTANCE, THE PRA, RATHER THAN THE FRA SHALL APPLY
V. THE NSC HAS FAILED TO PROVIDE A REASONABLE EXPLANATION AS TO WHY IT HAS SUDDENLY DECLARED THAT IT IS NOT AN AGENCY
VI. THE COURT'S FINDING THAT THE NSC IS AN AGENCY DOES NOT UNCONSTITUTIONALLY INTRUDE ON THE POWERS OF THE PRESIDENT, BECAUSE APPLYING THE FOIA TO THE NSC WOULD NOT CAUSE UNDUE DISCLOSURE OF SENSITIVE NATIONAL SECURITY DOCUMENTS
EXHIBIT A: PRESIDENT CLINTON'S MEMORANDUM
A. MEMORANDUM OF PRESIDENT CLINTON ON "ACCESS TO NSC RECORDS" DATED MARCH 24, 1994
EXHIBIT B: NATIONAL SECURITY COUNCIL MEMORANDA
A. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON "INSTRUCTIONS ON PRESIDENTIAL STATUS OF THE NATIONAL SECURITY COUNCIL AND REVISED DISCLOSURE AND DISPOSITION POLICY" DATED MARCH 25, 1994
B. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON "RECORDKEEPING GUIDANCE" DATED MAY 8, 1993
EXHIBIT C: GUIDELINES FOR COMPONENTS OF THE EXECUTIVE OFFICE OF THE PRESIDENT
A. LETTER FROM JASON R. BARON, ATTORNEY FOR UNITED STATES DEPARTMENT OF JUSTICE, TO MICHAEL TANKERSLEY, ATTORNEY FOR PUBLIC CITIZEN LITIGATION GROUP
B. OFFICE OF ADMINISTRATION'S MEMORANDUM ON "DIRECTIVE ON RECORDS MANAGEMENT OF ELECTRONIC COMMUNICATIONS"
C. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "ELECTRONIC COMMUNICATIONS SYSTEMS"
D. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "ELECTRONIC MAIL MODIFICATIONS"
E. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "MONITORING ELECTRONIC MAIL"
F. OFFICE OF SCIENCE AND TECHNOLOGY POLICY'S MEMORANDUM ON "ELECTRONIC COMMUNICATIONS SYSTEMS"
G. OFFICE OF MANAGEMENT AND BUDGET'S MEMORANDUM ON "NEW RECORDKEEPING GUIDANCE"
H. OFFICE OF NATIONAL DRUG CONTROL POLICY'S MEMORANDUM ON "NEW RECORDKEEPING GUIDANCE"
I. COUNCIL ON ENVIRONMENTAL QUALITY'S MEMORANDUM ON "NEW RECORD-KEEPING DIRECTIVE ISSUED"
EXHIBIT D: PROPOSED REGULATIONS ISSUED BY THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Despite a long history of acting as an "agency," and after admitting it was an agency, and thus subject to the Federal Records Act in this litigation, and notwithstanding a long practice of processing records pursuant to the Freedom of Information Act, the President and the Executive Secretary of the National Security Council suddenly changed course in 1994 declaring that the National Security Council is not an agency and thus not subject to the Federal Records Act. (Copies of the declarations are attached hereto and made a part hereof as Exhibit A, Mem. of President Clinton on "Access to NSC Records" dated March 24, 1995, and Exhibit B, Mem. of William H. Itoh, National Security Council Executive Secretary, on "Instructions on Presidential Status of the National Security Council and Revised Disclosure and Disposition Policy" dated March 25, 1994). In doing this on March 24 and 25, 1994, (See Exhibits A and B), the Defendants would have the Court ignore the facts that the National Security Council ("NSC") performs rulemaking and adjudication and functions independently of the President in many areas. Moreover, the NSC has operated as an agency, subject to the Freedom of Information Act, which requires that it must maintain and preserve its records in accordance with the Federal Records Act.
In particular, the Defendants contend that the NSC it not an agency, because its sole function is to advise and assist the President. The Court finds, however, that this contention is incorrect because the NSC performs traditional agency functions and operates independently of the President in many areas. Moreover, their contention that this decision will intrude on the exercise of Presidential powers and responsibilities is also wrong because Congress, in enacting the Freedom of Information Act ("FOIA"), specifically provided that material relating to national security shall not be disclosed.
In this case, the Plaintiffs claim that the Defendants are barred from asserting that the NSC is not an agency, because the Defendants conceded that it is an agency in the two prior Court of Appeals' opinions. See Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991); Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274 (D.C. Cir. 1993). In addition, the NSC has stated that:
The NSC does . . . acknowledge that documents received or created pursuant to the inter-agency process of the NSC are agency records for the purposes of the FOIA . . . .
(Joint Statement of Facts P 171 (December 8, 1992)).
The Plaintiffs also claim that the NSC is an agency because the NSC is an establishment in the Executive Branch that exercises authority independently of the President by performing adjudicatory and rulemaking functions and by performing duties in many key areas. Last, the Plaintiffs assert that a finding by the Court that the NSC is an agency does not raise any constitutional concerns because the FOIA exempts from disclosure documents that relate to sensitive national security matters.
Upon a careful consideration of the facts of this case, the Court concludes that the NSC is an agency, subject to the FOIA, and that it must maintain and preserve its records in accordance with the Federal Records Act, except when high level officials of the NSC are acting solely in their capacity to advise and assist the President. Consequently, the Court shall declare the NSC's recently changed guidelines
, classifying its records as "Presidential" Records, contrary to history, past practice and the law. (A copy of the old guidelines that were revoked by the March 25, 1994 declaration is attached hereto and made a part hereof as Exhibit B). Moreover, the Archivist shall be directed to perform her obligations with respect to NSC records under the Federal Records Act and to do so without any further delay as this case is important to the nation and the very credibility of this and future administrations.
This case was filed in 1989 at the close of President Reagan's Administration by journalist Scott Armstrong, the National Security Archive and several other individuals and organizations claiming, inter alia, that the President, the Archivist, and the NSC's recordkeeping practices failed to comply with the Federal Records Act and the Presidential Records Act.
That same year, this Court held as a preliminary matter that the President's and the NSC's compliance with the Federal Records Act and the Presidential Records Act was judicially reviewable. Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989). However, since there were some unresolved factual issues with respect to the Defendants' compliance with those recordkeeping statutes, this Court denied the Defendants' Motion to Dismiss the Complaint, or in the alternative for Summary Judgment, and allowed the parties to proceed with discovery. Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989). At that stage in the litigation, the Court did not address the substantive question of whether the NSC's recordkeeping guidelines appropriately distinguished between Federal and Presidential Records.
On appeal, the Court of Appeals for this Circuit affirmed this Court's ruling by agreeing that the adequacy of the NSC's recordkeeping guidelines was judicially reviewable pursuant to the Federal Records Act. Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 291-93 (D.C. Cir. 1991). However, the Court of Appeals remanded for a further development of the record to determine whether the NSC's electronic recordkeeping guidelines were consistent with law. Id.
This Court on remand
ruled on January 6, 1993, inter alia, that the Executive Office of the President's management of their electronic records violated the law because not all the pertinent information from the electronic records was being saved on hard copy or paper. Armstrong v. Executive Office of the President, 810 F. Supp. 335, 341-42 (D.D.C. 1993).
Thereafter, another appeal was taken in which the Court of Appeals for this Circuit held that the NSC's guidelines that initially categorize its records as either a Federal Record or a Presidential Record were judicially reviewable and, accordingly, remanded to this Court to determine whether the NSC's recordkeeping guidelines inappropriately classify some documents as Presidential Records rather than Federal Records.
Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1278, 1296 (D.C. Cir. 1993).
Establish procedures for access by the public to appropriate NSC records of the current Administration.
However, the next day, on March 25, 1994, NSC Executive Secretary William Itoh issued a written memorandum, which was not wholly consistent with what the President himself stated above. (Joint Statement of Facts P 53; Exhibit B). Mr. Itoh stated that the NSC is not an "agency" and that all of its records are Presidential Records, and thus not subject to the FOIA. Id. Accordingly, the Defendants' memorandum asserts that the NSC may classify all of its records solely under the Presidential Records Act. Id.
STATEMENT OF THE QUESTION PRESENTED
Whether a government entity, namely the NSC, which has historically treated itself as an agency, and has engaged in a multitude of functions independently of "advising and assisting the President," just like other components of the Executive Office of the President, which admittedly are "agencies" subject to the Freedom of Information Act
and the Federal Records Act, can unilaterally after many years of treating itself as an agency, suddenly change its designation without offering a reasoned explanation for the sudden change, and thus declare that it is no longer an "agency?"
If the NSC's declaration that it is not an "agency" is true, then it may classify all of its records solely as Presidential Records. On the other hand, if the Court finds that the NSC is an "agency," the NSC's documents would be subject to the FOIA and it would have to maintain and preserve its records in accordance with the Federal Records Act. Accordingly, the Archivist would be required to fulfill her duties as prescribed by the Federal Records Act.
This case is not a political question but one of statutory construction, and it is one requiring deference to a longstanding practice of an agency. It involves, inter alia, a sudden change in position that is not only contrary to law but without any reasoned explanation for the change. See Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1971), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971).
This Judge has the highest regard for the other two coordinate Branches of the Government and would not knowingly intrude on their power and the exercise of their constitutional duty. The same is true of this Court's respect for the institution of the Presidency including our current Commander-in-Chief and his predecessors. However, this is a country of laws and not of persons and no one including the President is above the law as set forth in the Constitution and laws of the States. This is also why we have independent Courts with the power of Judicial Review going back to Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803).
To settle the matter in accordance with the Court of Appeals' remand, the parties filed the instant Cross-Motions to Dismiss, or, in the Alternative, for Summary Judgment,
Oppositions, and Replies thereto, which are now before the Court.
In light of the papers filed by the parties, the underlying law, the entire record herein, and oral argument, the Court shall grant the Plaintiffs' Motion for Summary Judgment, and deny the Defendants' Motion.
Since the early 1980's, the NSC has used electronic mail systems to manage information. (Joint Statement of Facts at P 42). All NSC staff members have access to these systems, which allow users electronically to transmit mail, generate calendars of appointments and meetings, create and edit memoranda, and transfer files and documents. These electronic communications systems contain organizational, functional, policy, procedural, and operational information regarding the NSC. When employing these electronic systems, NSC staff members are not instructed to distinguish between "Presidential" and "Federal" Records. (Responses of NSC to Plaintiffs' Requests for Admissions, RFA 1-11 at 61 (1994)). Copies of the information from these electronic systems are regularly copied onto "backup tapes," which contain information created during the Reagan, Bush, and Clinton administrations. (See Joint Statement of Facts P 46 (October 3, 1994)). Currently, the "backup tapes" are being retained by the Defendants in accordance with previous Court-ordered injunctions. According to the NSC, since it is not an "agency" as defined in the Federal Records Act or the FOIA, the records created on these electronic systems are not agency records that would be subject to the Federal Records Act. (Exhibit B).
Notwithstanding the NSC's current declaration that it is not an agency, in previous pleadings filed with the Court, the NSC has stated that it performs the dual functions of advising and assisting the President, and performs independent functions. (Joint Statement of Facts P 171 (December 8, 1992); see Exhibit B). Moreover, the Defendants have previously acknowledged that "documents received or created pursuant to the inter-agency process of the NSC are agency records for the purposes of the FOIA. . . ." (Joint Statement of Facts P 172 (December 8, 1992) (citing Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 286 n.2 (D.C. Cir. 1991))).
A. The Recordkeeping Statutes
Prior to the NSC's March 25, 1994 declaration that it is not an agency, the NSC's recordkeeping guidelines distinguished between Federal and Presidential Records. E.g., Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991). The Federal Records Act ("FRA") governs a federal agency's duties with respect to managing Federal Records. According to the FRA, the head of each agency is to:
Make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
44 U.S.C. § 3101. Moreover, agency heads are to "establish and maintain an active, continuing program for . . . economical and efficient [records] management," and "establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist." Id. at 3102, 3105. Records that are subject to the Federal Records Act are immediately subject to the FOIA. See 5 U.S.C. § 552. Further, recordkeeping guidelines promulgated under the FRA are subject to judicial review. Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 292-92 (D.C. Cir. 1991).
To dispose of a Federal Record, an agency must first garner the approval of the Archivist. The Archivist is vested with the duty to determine if a record is suitable for destruction by deciding if the record has "sufficient administrative, legal, research, or other value to warrant [its] continued preservation." 44 U.S.C. § 3303(a). Consequently, documents that qualify as a Federal Record are subject to specific guidelines and procedures in their management and disposal.
In contrast to Federal Records, the President has greater control over documents generated during his term of office that qualify as a Presidential record. See 44 U.S.C. § 2204. Under the Presidential Records Act ("PRA"):
The President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records. . . .
44 U.S.C. § 2203 (emphasis added).
The PRA further provides that the President may only dispose of his Presidential Records after he "obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential Records," and the Archivist consults with Senate and House Committees "with respect to any proposed disposal of Presidential Records." Id.
In addition, after the President leaves office, the PRA provides that:
The Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act. . . .
Id. In addition, before the conclusion of his term of office, the President is to specify a duration, "not to exceed twelve years, for which access shall be restricted with respect to information, in a Presidential Record." The restriction on access to Presidential Record material applies to certain categories of information contained in a Presidential Record, such as personnel and medical files, the disclosure of which would clearly constitute an unwarranted invasion of personal privacy, or information involving confidential advice between the President and his advisors, etc. 44 U.S.C. § 2204.
B. The Structure Of The National Security Council
The National Security Act of 1947 established the NSC. 50 U.S.C. § 402 Pursuant to the Reorganization Plan No. 4 of 1949, the NSC was transferred to the Executive Office of the President ("EOP"). As an entity within the EOP, the NSC has a separate budget and staff, and a firm structure.
From fiscal years 1983 to 1995, the NSC's budget has ranged from approximately $ 4,000,000 to $ 7,000,000. (See Budget of the United States Government (1985); Mem. from J. Robert Manzanares, Director of Administration, to Robert S. Dotson, Chief, Air Force Branch of National Security Division Office of Management and Budget, entitled "FY 1995 Submission" (1993)). In fact, last week President Clinton transmitted his budget to Congress requesting $ 6,648,000 for the operation of the NSC. (Fiscal Year 1996 Budget Submission (February, 1995)).
Pursuant to the National Security Act of 1947, the NSC has its own staff, consisting of approximately one hundred fifty individuals drawn from various executive departments and agencies, and from outside the government. (Defs.' Resp. and Supplemental Resp. to Inter. No. 2). Internal documents created before March, 1994, state that the NSC staff acts as members of an agency. (Letter from Stephen J. Rademaker, NSC Deputy Legal Adviser, to Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice (August 26, 1992); NSC Mem. on "United States of America v. Caspar Weinberger" (1992)).
With respect to its structure, the NSC, pursuant to various Presidential Directives, is divided into a three-tiered system of committees or groups consisting of: (1) a principals' committee; (2) a deputies' committee; and (3) interagency working groups.
Various statutes, regulations, Executive Orders and Directives prescribe the functions that the NSC performs independently of the President, such as rulemaking and adjudication, and its role in specific policy areas. E.g., National Security Act of 1947 § § 102, et seq.; Exec. Order No. 12,333, ...