Allen v. Department of Defense

• Decision Date: 04 March 1983
• Docket Number: Civ. A. No. 81-2543.
• Citation: 580 F. Supp. 74
• Parties: Mark A. ALLEN, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

580 F. Supp. 74

Mark A. ALLEN, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants.

Civ. A. No. 81-2543.

United States District Court, District of Columbia.

March 4, 1983.

COPYRIGHT MATERIAL OMITTED

James H. Lesar, Arlington, Va., for plaintiff.

Stephen E. Hart, U.S. Dept. of Justice, Washington, D.C. and Michael L. Murray, Asst. Gen. Counsel to the Clerk, Stanley M. Beard, Gen. Counsel to the Clerk, Steven R. Ross, House of Representatives, Washington, D.C., for defendants.

MEMORANDUM

FLANNERY, District Judge.

Plaintiff, Mark Allen, a researcher seeking information into the assassination of President John F. Kennedy, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976). Plaintiff seeks access to records of any communications between the United States House of Representatives Select Committee on Assassinations ("HSCA" or "Committee") and the Department of Defense/Defense Intelligence Agency ("DIA") or the Central Intelligence Agency ("CIA").

This matter is before the court on motions for summary judgment by the Executive Branch defendants, the CIA and DIA. The Executive Branch defendants argue that the records are exempt from disclosure pursuant to exemption five of FOIA, 5 U.S.C. § 552(b)(5). In addition, the CIA argues that the documents are exempt from disclosure because they are "congressional" under the test established by this Circuit in Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C.Cir.1978), modified on other grounds, 607 F.2d 367 (D.C. Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). The CIA also argues that the documents are not improperly withheld within the meaning of FOIA because Congress requested that the agency secure, and limit access to, the documents.

The Clerk of the House of Representatives has filed a memorandum as amicus curiae. In that brief, the Clerk argues that all the records at issue are barred from disclosure because of the Speech or Debate Clause of the Constitution, Article I, § 6, cl. 1.

Facts

In February, 1977, the House of Representatives passed a resolution authorizing the creation of the HSCA. The Committee was created to ascertain whether an earlier investigation into the assassination of President John Kennedy was adequate and lawfully conducted. The Committee was to explore, inter alia, the conduct of a number of intelligence agencies that had participated in the assassination inquiry and to determine whether there was full disclosure and sharing of information among the agencies.

As part of its investigation, the Committee sought and obtained a large number of documents from the CIA. Many of the documents provided the Committee by the CIA were preexisting CIA documents. Others were documents generated by the CIA in response to Congressional requests for information. During its investigation, the Committee also generated its own documents from CIA materials. Additionally, correspondence was exchanged between the CIA and the Committee. The Committee also requested information from the DIA, albeit on a much smaller scale.¹

The material submitted by the CIA to the Committee, as well as the material returned to the CIA from the Committee, was separately compiled and sequestered within a secure area of the CIA.² This was done pursuant to a Memorandum of Understanding entered into by the CIA and the Committee designating conditions under which CIA materials would be made available to the Committee. This Memorandum requires that materials provided to the Committee by the CIA be kept and preserved in secure storage at the CIA for at least thirty years unless the Director of the CIA and the House of Representatives agree to a shorter period of time. In addition, no CIA employee is to have access to the compilation without the concurrence of the Clerk of the House of Representatives.

On December 15, 1980, the plaintiff submitted a request to the CIA for "all correspondence or records of any communications between your agency and the U.S. House Select Committee's investigation into the assassination of President John F. Kennedy." On December 29, 1980, the agency replied, stating that the material requested is congressional, and thereby exempt from disclosure under FOIA. On January 6, 1980, plaintiff made an identical request to the DIA. On May 1, 1980, the DIA denied plaintiff's request, asserting that the material is congressional.³

On April 6, 1981, plaintiff made a second request under FOIA to the CIA requesting "all records relating to the investigation of the U.S. Select Committee on Assassinations not covered by my FOIA request of December 15, 1980." On June 28, 1981, plaintiff informed the CIA that he deemed its failure to provide him with any records to be a denial of his request and he appealed that determination. Both agencies subsequently denied plaintiff's appeals and reaffirmed their earlier determinations. On October 20, 1981, plaintiff filed this action seeking to compel production of the documents from the CIA and the DIA.

Discussion

Several general principles guide the court in its review of the defendants' claimed exemptions. First, the court must make a de novo review of the claims, but in doing so must accord substantial weight to agency affidavits. See Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980); Ray v. Turner, 587 F.2d 1187, 1195 (D.C.Cir. 1978). Second, the agency has the burden of justifying nondisclosure by establishing the applicability of the claimed exemption to the material at issue. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Finally, it is "well settled in Freedom of Information cases as in any others that `summary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.'" Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C. Cir.1979), quoting National Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir.1973). With these principles in mind, this court turns to the contentions of the parties.

Plaintiff seeks access to all documents held by the CIA and the DIA which relate to the Committee's investigation into the assassination of President Kennedy. The defendants claim a number of exemptions for the entire compilation of materials held by them. Defendants make no distinction in the type of material held or its source, nor do defendants attempt to particularize exemptions for each document or category of document held by them. However, the compilations held by the CIA and DIA contain different categories of documents. The compilations contain:

(1) Classified material, from agency files, requested by the committee, and submitted to the Committee by the agency. This category has been categorized by the CIA in one context as category 1a and 1b materials. This category shall be referred to herein as "preexisting agency records."

(2) Material generated by the Committee from Agency classified holdings made available to the Committee by the CIA upon the request of the Committee. The agency has referred to this as category 2 materials. This category shall be referred to herein as "Committee generated" materials.

(3) Materials and correspondence generated by the Agency in response to explicit Congressional requests. The agency has included this material within its category 3 materials. This category shall be referred to herein as "Agency generated" materials.

The defendants' claims of exemption are best examined with reference to the separate categories of documents listed above.

A. Congressionally Generated Materials

Clearly any records generated by the Committee, including reports, correspondence, memoranda, or other documents are exempt from disclosure under FOIA. FOIA governs access to agency records only. 5 U.S.C. § 552(a)(4)(B). However, plaintiff does not seek the records from Congress, but from the Executive Branch agencies. Those agencies have custody of the records, and they are of course subject to FOIA.

The question before the court is whether the congressionally generated materials become agency records vulnerable to FOIA requests because Congress has relinquished possession of them to the agencies. The answer to this question has been resolved by the authority of this Circuit expressed in Goland, supra at 347-48, and most recently in Holy Spirit Ass'n for the Unification of World Christianity v. Central Intelligence Agency, 636 F.2d 838 (D.C.Cir.1980), vacated in part, 455 U.S. 997, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982).

In Goland the Court established a test for determining when congressionally generated or created documents, released to an agency for safekeeping, remained congressional documents immune from disclosure under FOIA. Finding that Congress had the authority to keep its records secret even if given to an agency, the Court stated:

Whether a congressionally generated document has become an agency record, rather, depends on whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides.

Goland, supra at 347.

In Goland, the Court considered two factors in making the determination noted above. The Court explored (1) the circumstances surrounding the creation of the document, and (2) the conditions under which it was transferred from Congress to the agency. Id. at 347-48. See also Holy Spirit, supra at 841. Applying these two factors to the transfer of documents at issue here, this court finds that both the circumstances attending the creation of the documents, and the manifestation of congressional intent when the documents were given for safekeeping to the CIA, demonstrate that Congress...