"includes" in Section 552(f) strongly suggests that the definition does not apply only to the entities listed--that is, executive departments, military departments, Government corporations, Government controlled corporations, other establishments in the executive branch of the government, and independent regulatory agencies. Otherwise, had Congress intended to limit the definition to the above-named entities, it could have done so easily by including a limiting word or phrase such as "only" or "limited to". In short, Congress's choice of the term "includes" leads to the conclusion that Congress meant to keep the definition broad enough to cover not only these entities listed, but other national entities as well.
On the other hand, Congress chose to specifically exclude eight different governmental entities from its definition of "agency" in Section 551(1). Significantly, the Smithsonian is not one of the eight entities specifically excluded from coverage of the Act. Therefore, as long as it is not excluded from the Act by virtue of the eight categories listed in Section 551(1), and given the inclusiveness of Section 552(f) as well as the failure of Congress to provide any limiting definition of the term "authority", the Court concludes that the Smithsonian does not have to be an "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government . . . or any independent regulatory agency" to qualify as "an authority of the Government of the United States" and thus constitute an agency under the Privacy Act. 5 U.S.C. § 551(1).
Given the imprecision of the statute itself, the Court will also look to the Act's legislative history and to the relevant case law for further guidance.
B. Legislative History of the Act
The legislative history of the Freedom of Information Act is also less than clear and conclusive on whether the Smithsonian constitutes a FOIA agency. The legislative history that is available, however, does indicate an intent to establish a broad definition encompassing entities which, while not technically a part of the federal government itself, are characterized by substantial governmental involvement and control.
For example, Congress amended FOIA in 1974 in order to broaden the definition of "agency" to encompass more entities "which perform governmental functions and control information of interest to the public." H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), reprinted in U.S. Code Cong. & Admin. News 1974, 6267, 6274 (hereinafter "House Report"); quoted in Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288, 1298 (D.C. Cir. 1993) (Wald, J., dissenting); see also H.R. Rep. No. 93-1380, 93rd Cong., 2d Sess., September 25, 1974, reprinted in FOIA Source Book: Legislative History, Texts, and Other Documents, Committee on Government Operations, U.S. House of Representatives 219, 231 (hereinafter "Conference Report") (stating that the conference substitute follows the House bill).
According to the House Report, the definition of "agency" under FOIA (and the Privacy Act) is broader than its definition under the APA. Id. Although the FOIA definition applies to governmental entities as well as government-controlled corporations, it does not apply to "corporations which receive appropriated funds but are neither Chartered by the Federal Government nor controlled by it." Conference Report, supra, at 231-32. This focus on governmental involvement in FOIA's definition of "agency" is designed to further FOIA's purpose to protect "the right of the individual to be able to find out how his [or her] government is operating." H.R. Rep. No. 1497, 89th Cong., 2d Sess. 5 (1966), 1966 U.S. Code Cong. & Admin. News at 2423.
Both of the excerpts from the legislative history cited above suggest that Congress intended that the determination of agency status under FOIA and the Privacy Act depend largely on the nature and extent of an entity's relationship with the federal government. i.e., the greater the governmental involvement and control, the more likely that the entity would be considered a covered agency. Such an analysis is properly applied in this case.
Although courts have ruled on the "agency" status of numerous entities, they have not developed any uniform test for making such a determination. See, generally, Richard P. Shafer, Annotation: The Meaning of the Term "Agency" for Purposes of the Freedom of Information Act, 57 A.L.R. Fed. 295 (1994). Some courts, however, have enunciated that two factors are relevant to the determination of agency status: (1) whether the entity has "independent decisional authority", and (2) whether the entity is subject to "day-to-day federal control". Public Citizen Health Research Group v. Department of Health, Education and Welfare, 215 U.S. App. D.C. 191, 668 F.2d 537, 541 (D.C. Cir. 1981), citing Washington Research Project, Inc. v. HEW, 164 U.S. App. D.C. 169, 504 F.2d 238 (D.C. Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 450, 95 S. Ct. 1951 (1975).
In some cases, the Court of Appeals for the D.C. Circuit has focused primarily on the first of the two factors above, and engaged in a "functional analysis". For example, in Soucie v. David, the court conceded that the APA's statutory definition of "agency" is not "entirely clear," but concluded that the APA "apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." 448 F.2d 1067, 1073, 145 U.S. App. D.C. 144 (D.C. Cir. 1971); see also Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288, 1292 (D.C. Cir. 1993).
In a different case more factually similar to this one, the D.C. Circuit emphasized the second of the two factors, and consequently found the Federal Home Loan Mortgage Corporation ("the Corporation"), to be an "agency" subject to the Privacy Act. Rocap v. Indiek, 176 U.S. App. D.C. 172, 539 F.2d 174, 176-77 (D.C. Cir. 1976). In holding that FOIA's definition of agency applied to "hybrid governmental/private entities", the Rocap Court found it compelling that, not only did the Corporation have a Federal Charter, but also was subject to "substantial federal control over its day-to-day operations." Id. at 177. In the situation of a hybrid governmental/private entity, the court concluded, the proper inquiry to be made in determining if an entity constitutes an agency under FOIA and the Privacy Act is the amount of federal control.
In making this determination, the Rocap Court engaged in the following analysis:
The organizational structure of the Corporation exhibits many characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated as an "agency," and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered "to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes of [its enabling act.]" (citation omitted).