All Party Parliamentary Grp. On Extraordinary Rendition v. U.S. Dep't of Def.

• Decision Date: 17 June 2014
• Docket Number: No. 13–5176.,13–5176.
• Citation: 754 F.3d 1047
• Parties: ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION, et al., Appellants v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

754 F.3d 1047

ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION, et al., Appellants

v.UNITED STATES DEPARTMENT OF DEFENSE, et al., Appellees.

No. 13–5176.

United States Court of Appeals, District of Columbia Circuit.

Argued May 7, 2014.

Decided June 17, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–02375).

Dominic F. Perella argued the cause for appellants. With him on the briefs were Audrey E. Moog, Jonathan L. Abram, and Mary H. Wimberly.

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald Machen, U.S. Attorney, and Matthew Collette, Attorney.

Before: TATEL, GRIFFITH, and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Under the Freedom of Information Act, although generally any legal entity may request records from federal agencies, U.S. intelligence agencies are prohibited from releasing records to foreign government entities or to their “representatives.” In this case, a member of the British House of Commons, an informal British parliamentary caucus, and an American lawyer representing both all filed FOIA requests seeking various records from the CIA and other intelligence agencies. The agencies denied these requests, claiming that the requesters all qualified as “representatives” of the British government. The district court agreed and dismissed their suit to compel disclosure. For the reasons stated in this opinion, we reverse.

I.

Appellant Andrew Tyrie is a member of the British Parliament and co-chair of Appellant the All Party Parliamentary Group on Extraordinary Rendition (“APPG”), an informal parliamentary caucus. Seeking to expose the United Kingdom's alleged involvement in extraordinary rendition, Tyrie and the APPG, along with their American lawyer, Appellant Joe Cyr, filed FOIA requests with various federal agencies, including some—the CIA and components of the Departments of Defense, Justice, State, and Homeland Security—that are part of the “intelligence community.” See50 U.S.C. § 3003(4) (listing agencies that comprise the “intelligence community”). Declining to release relevant records, these agencies invoked FOIA's so-called Foreign Government Entity Exception. That exception—unique among FOIA provisions in that it limits access based on the identity of the requester rather than the content of the requested records—precludes intelligence agencies from “mak[ing] any record available ... to—(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i).” 5 U.S.C. § 552(a)(3)(E). According to the intelligence agencies, all three FOIA requesters qualify as “representatives” of the British government.

The FOIA requesters sued to compel disclosure. They argued that in order to qualify as a “representative” of a foreign government entity, the FOIA requester must be an agent of that entity, and because they had no authority to file these requests on behalf of the British government, the intelligence agencies could not invoke the Foreign Government Entity Exception.

The district court dismissed the complaint, reasoning that “the term ‘representative’ is not synonymous with ‘agent’ for the purposes of [FOIA] ..., and when Congress uses different words a court must assume that the difference was intentional.” All Party Parliamentary Group on Extraordinary Rendition v. U.S. Department of Defense, 851 F.Supp.2d 169, 175 (D.D.C.2012). Finding that Tyrie “wields the power to act with the government's imprimatur,” the district court concluded that he qualifies as a “representative” of the British Parliament, a foreign government entity. Id. at 175. “Because Joe Cyr is Andrew Tyrie's legal representative,” the district court continued, “Cyr's request is similarly barred.” Id. at 177. And as to the APPG, an organization composed “exclusively of public officials,” the district court concluded that it is itself a “ ‘subdivision’ of a foreign ‘government entity’ within the language of the [Foreign Government Entity Exception].” Id. at 175–76.

The three FOIA requesters now appeal, reiterating arguments they made in the district court. For their part, the intelligence agencies do not defend the district court's conclusion that the APPG constitutes a subdivision of a foreign government entity. Instead, they argue that all three FOIA requesters qualify as “representatives” of the British government: Tyrie as a member of Parliament, the APPG as an organization made up entirely of members of Parliament, and Cyr as their legal representative. “We review de novo the district court's grant of a motion to dismiss, as well as its resolution of this pure question of statutory interpretation,” Gonzalez–Vera v. Townley, 595 F.3d 379, 381–82 (D.C.Cir.2010) (internal quotation marks and citation omitted), and give the intelligence agencies' interpretation of FOIA no deference, see Al–Fayed v. C.I.A., 254 F.3d 300, 307 (D.C.Cir.2001) (“[I]t is precisely because FOIA's terms apply government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would otherwise do under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)....”).

II.

At the outset, we think it important to place this case in its proper context. For one thing, contrary to the intelligence agencies' suggestion that interpreting “representative” to mean “agent” would expose government secrets to terrorists, national security is not at issue here. Because one of FOIA's traditional exemptions prevents disclosure of classified records, no classified information will see the light of day regardless of how we decide this case. See5 U.S.C. § 552(b)(1) (precluding disclosure of records “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy”). Moreover, whatever the Foreign Government Entity Exception's “representative” provision means, it is unlikely to pose a serious barrier to the release of unclassified records. Since the exception does not apply to FOIA requests filed by any person, foreign or domestic, other than foreign government entities and their representatives, a requester concerned about the exception can steer clear of it simply by waiting for a likeminded requester to seek the same information. Cf. Oral Arg. Rec. 21:10–:40 (noting that several FOIA requesters who fall well outside the Foreign Government Entity Exception have recently filed requests identical to those at issue here). But because Tyrie, the APPG, and Cyr filed these requests themselves, prompting the intelligence agencies to invoke the Foreign Government Entity Exception, we must determine the scope of the exception's “representative” provision—a question of first impression in this or any circuit.

Although the intelligence agencies insist that these FOIA requesters are “representatives” of a foreign government entity, they never clearly explain how they would have us define “representative.” In their brief, they urge us to hold that the Foreign Government Entity Exception applies, “at a minimum, to FOIA requests filed by members of the legislative bodies of foreign governments, groups comprised solely of such individuals, and their legal representatives.” Appellees' Br. 10. When pressed at oral argument to provide a definition of the term that would apply more broadly, counsel suggested that “representatives” of foreign government entities include all those who have the capacity to act on behalf of such entities. Oral Arg. Rec. 17:00–18:20, 22:25–23:00. But counsel seemed less willing to defend this interpretation once he realized that it might capture personal secretaries, cafeteria employees, and janitors. Id. at 25:15–28:50.

By contrast, the FOIA requesters have consistently posited a clear interpretation of the term “representative.” As they see it, “representative” means “agent.” Thus, “representatives” of foreign government entities include only those who have been empowered to file certain types of FOIA requests on behalf of such entities and only when they file those types of requests. Authority to act as an agent of a foreign government entity for purposes of FOIA is likely inherent in certain positions, such as head of state and ambassador, obviating any need to inquire into whether officials holding such positions have specific authority to file particular sorts of FOIA requests. Other officials, such as cabinet ministers, likely also have inherent authority to submit FOIA requests so long as the requests relate to matters within the jurisdiction of their offices. The intelligence agencies concede that under the FOIA requesters' theory, Tyrie, the APPG, and Cyr fall outside the Foreign Government Entity Exception.

The FOIA requesters have the better of this argument. To begin with, consider the meaning of the word “representative.” The Oxford English Dictionary defines “representative,” in part, as “[o]ne who represents another, as agent, delegate, substitute, successor, or heir.” XIII Oxford English Dictionary 660 (J.A. Simpson & E.S.C. Weiner eds., 2d ed.1989); see alsoWebster's Third New International Dictionary 1926 (Philip Babcock Gove ed., 3d. ed.1993) (defining “representative,” in part, as “constituting the agent for another esp. through delegated authority”). Indeed, this Court recently observed as much with respect to the same word in a different statute: “ ‘representative’ is traditionally and commonly defined as an agent with authority to bind others.” Loving v. I.R.S., 742 F.3d 1013, 1016 (D.C.Cir.2014) (citing various dictionaries, including specialized legal dictionaries, and various...