Public Citizen v. Burke, s. 87-5194

• Decision Date: 12 April 1988
• Docket Number: Nos. 87-5194,87-5215,s. 87-5194
• Citation: 843 F.2d 1473
• Parties: PUBLIC CITIZEN, et al. v. Frank BURKE, Acting Archivist, National Archives & Records Administration, et al., Appellants, Richard M. Nixon. PUBLIC CITIZEN, et al. v. Frank BURKE, Acting Archivist, National Archives & Records Administration, et al. Appeal of Richard M. NIXON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1473

843 F.2d 1473

269 U.S.App.D.C. 145

PUBLIC CITIZEN, et al. v. Frank BURKE, Acting Archivist, National Archives & Records

Administration, et al., Appellants,

Richard M. Nixon.

PUBLIC CITIZEN, et al. v. Frank BURKE, Acting Archivist, National Archives & Records

Administration, et al.

Appeal of Richard M. NIXON.

Nos. 87-5194, 87-5215.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 12, 1988.

Decided April 12, 1988.

Appeals from the United States District Court for the District of Columbia (Civil Action No. 86-01787).

Samuel A. Alito, Jr., U.S. Atty., Newark, N.J., with whom Michael Carvin, Deputy Asst. Atty. Gen., was on the brief, for federal appellants.

R. Stan Mortenson, with whom Herbert J. Miller, Jr., Washington, D.C., was on the brief, for appellant Richard M. Nixon.

Eric R. Glitzenstein, with whom David C. Vladeck and Alan B. Morrison, Washington, D.C., were on the brief, for appellees.

Before SILBERMAN and SENTELLE, Circuit Judges, and HAROLD H. GREENE, ^* Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

This case involves a challenge to regulations issued under the Presidential Recordings and Materials Preservation Act of 1974 ("PRMPA"), note following 44 U.S.C. Sec. 2111 (1982). In March of 1985, the Archivist of the United States, the official charged with custody of the materials of former President Nixon, published regulations governing disclosure of certain of these materials. The Justice Department opined that the regulations must be "interpreted" for constitutional reasons as obliging the Archivist to acquiesce in any claim of executive privilege asserted by the former President to block disclosure of materials, and the Archivist has adopted that interpretation.

Appellees, Public Citizen, Reporters Committee for Freedom of the Press, and writer David A. Bollier challenged that interpretation successfully in the district court, and the government appeals. Since the Archivist's regulations, as interpreted by the Justice Department, are premised on what we believe is a misunderstanding of the Constitution, we agree with the district court that the agency's regulations cannot be upheld with the gloss placed upon them by the Justice Department. SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). The district court, 655 F.Supp. 318, is therefore affirmed.

I.

The Nixon Papers Act has engendered much litigation since its passage in 1974. See Nixon v. General Servs. Admin., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Nixon v. Freeman, 670 F.2d 346 (D.C.Cir.), cert. denied, 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982); Allen v. Carmen, 578 F.Supp. 951 (D.D.C.1983). The principal intent of Congress in passing PRMPA was to maintain a publicly available historical record of the Nixon presidency by gaining control over some 42 million pages of documents and 880 tape recordings from former President Nixon by in effect abrogating Mr. Nixon's depository agreement with Arthur F. Sampson, Administrator of the General Services Administration ("GSA"). H.R.Rep. No. 1507, 93d Cong., 2d Sess. 2-4 (1974). The Nixon-Sampson Agreement, announced on September 8, 1974, the day then President Ford pardoned Mr. Nixon, gave former President Nixon "all legal and equitable title" to the materials, the power to control access to the materials, the right to withdraw any portion of the materials after three years, and the assurance that all tape recordings would be destroyed upon Mr. Nixon's death or September 1, 1984, whichever was earlier. See Nixon v. Sampson, 389 F.Supp. 107, 160-62 (D.D.C.1975) (App. A., Nixon-Sampson Agreement).

Congress entrusted the Administrator of the GSA with custody of the Nixon materials--an action the Supreme Court subsequently upheld as not unconstitutional, at least on its face. Nixon v. General Servs. Admin., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867. Although the Administrator was replaced by the Archivist in 1984 as the official in charge of the materials, ¹ the Act and its goals have remained largely intact. PRMPA requires the Archivist to promulgate regulations for public access, taking into account seven factors ranging from the "need" to disclose information about "Watergate" to the "need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access." PRMPA Sec. 104(a). ² Congress intended PRMPA to "provide the public with the full truth, at the earliest reasonable date, of the abuses of government power" during the "Watergate" period. H.R.Rep. No. 1507, 93d Cong., 2d Sess. 1-3 (1974). In order to protect its interest in disclosure, Congress at first enacted a legislative veto provision in Sec. 104(b), but after INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) held unconstitutional Congress' use of the one-House veto, it settled on a requirement that the regulations not take effect until sixty days after their submission to Congress, PRMPA Sec. 104(b) (Supp. II 1984).

Under the current, sixth set of regulations, ³ the Archivist prepares the Nixon materials for public access by organizing them into "integral file segments," which are "intelligible and complete unit[s] for purposes of historical research." Freeman, 670 F.2d at 352 n. 11. Access is tempered, however, by the Archivist's segregation of certain restricted materials: for example, materials that are private or that neither relate to "abuses of power" nor have general historical significance are not released. 36 C.F.R. Sec. 1275.46(b) (1987); see also id. Sec. 1275.50(a) (no access if release of Watergate materials would violate a federal statute or is subject to a claim of privilege); id. Sec. 1275.52(b) (no access if release of non-Watergate materials would disclose trade secrets or constitute libel or an invasion of personal privacy).

Once a segment is fully prepared, the Archivist is obliged to publish in the Federal Register notice of his intent to provide public access. Id. Sec. 1275.42(b). This notice must identify the materials to be made public and also apprise any interested person that he is entitled to assert a legal or constitutional right or privilege to halt access. Those who are to receive special notice include former President Nixon and any individual whose name appears in the materials. If there is a complaint protesting disclosure, the interested individual may file his objection with the Archivist, who, according to the language of the regulations, is responsible for the decision in those cases involving claims of privilege. Id. Sec. 1275.44(a).

Before publication of this sixth version of the regulations, the Archivist, pursuant to Executive Order No. 12,291, forwarded the regulations to the Office of Management and Budget ("OMB") for clearance. OMB in turn requested the views of the Justice Department's Office of Legal Counsel ("OLC") as to whether the proposed regulations adequately honored Sec. 104(a)(5) of PRMPA concerning claims of privilege. OLC responded by memorandum asserting that the language of the regulations--insofar as they authorized the Archivist to determine the merits of an assertion of executive privilege--would not be consistent with the Constitution. According to OLC, if either an incumbent President or former President Nixon were to assert executive privilege with respect to any document or group of documents, the Archivist would be obliged to honor that claim and a requester could only challenge the assertion of executive privilege in federal court.

The Archivist did not formally modify the regulations to conform to OLC's view, but has, since publication, indicated his determination to conform fully to the Justice Department's opinion. Testifying before Congress, the Archivist, Dr. Frank G. Burke, said "Because approval by the [OMB] of our regulations was conditioned upon the Department of Justice opinion and because the Department of Justice represents the National Archives in all litigation, we consider the opinion binding upon our administration of the Nixon materials." Review of Nixon Presidential Materials Access Regulations: Hearing Before a Subcomm. of the Comm. on Gov't Operations, 99th Cong., 2d Sess. 176, at 43 (1986) (testimony of Frank G. Burke, National Archivist); see also Letter from Frank G. Burke to Hon. Thomas P. O'Neill (Feb. 26, 1986) (reporting the final set of PRMPA regulations with OLC memorandum interpretation). ⁴ All parties to this litigation agree that the regulations have essentially been modified to accord with the Justice Department's views and it is as modified that they were challenged in the district court by appellees. ⁵

II.

The statute is not explicit as to whether Congress intended the Archivist to determine himself the merits of a claim of executive privilege. We therefore must consider whether the government's construction of the statute is entitled to deference. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Appellees argue that deference would be manifestly inappropriate here since Congress originally delegated its interpretation to GSA and subsequently, to ensure professional non-partisan implementation, to the Archivist. And, as is quite clear, the Archivist did not originally interpret the statute as the Justice Department would wish; in fact, the Archivist does not explicitly embrace OLC's view, he only acquiesces in OLC's opinion.

The doctrine of administrative law obliging the Judiciary to defer to an administrative agency's interpretation of a statute the agency is charged with enforcing does in part, as appellees suggest, rest on the assumption that a specific agency's expertise is greater than the court's--and therefore that agency is likely to...