Armstrong v. Executive Office of the President

• Citation: 90 F.3d 553
• Decision Date: 02 August 1996
• Docket Number: Nos. 95-5057,95-5061,s. 95-5057
• Parties: , 65 USLW 2140 Scott ARMSTRONG, et al., Appellees/Cross-Appellants v. EXECUTIVE OFFICE OF THE PRESIDENT, et al., Appellants/Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 553

90 F.3d 553

319 U.S.App.D.C. 330, 65 USLW 2140

Scott ARMSTRONG, et al., Appellees/Cross-Appellants v. EXECUTIVE OFFICE OF THE PRESIDENT, et al., Appellants/Cross-Appellees.

Nos. 95-5057, 95-5061.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 8, 1995.

Decided Aug. 2, 1996.

Appeals from the United States District Court for the District of Columbia (No. 89cv00142).

Freddi Lipstein, Senior Counsel, Washington, DC, United States Department of Justice, argued the cause, for appellants, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Leonard Schaitman, Attorney, United States Department of Justice, were on the briefs. Michael J. Singer, Assistant Director, and Matthew M. Collette, Attorney, United States Department of Justice, entered appearances.

Michael E. Tankersley, Washington, DC, argued the cause, for appellees, with whom David C. Vladeck and Alan B. Morrison, were on the briefs.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting Opinion filed by Circuit Judge TATEL.

GINSBURG, Circuit Judge:

This case presents the question whether the National Security Council is an "agency" subject to the Freedom of Information Act, 5 U.S.C. § 552(f), that is, whether the NSC is an "executive department ... or other establishment in the executive branch." If so, then the NSC is both subject to the disclosure requirements of the FOIA and obligated to preserve its records in accordance with the Federal Records Act, 44 U.S.C. §§ 3101-07, 3301-14.

The plaintiff-appellees are the National Security Archive, a research institute and library; Scott Armstrong, a journalist affiliated with the Archive; and several associations, including the National Library Association and the National Historical Association (hereinafter referred to collectively as Armstrong). The defendant-appellants are the Executive Office of the President; the Office of Administration and the NSC, which are components of the EOP; the White House Communications Agency, an element of the Department of Defense; and Trudy Peterson, the Acting Archivist of the United States.

The district court granted Armstrong's motion for summary judgment, declared that the NSC is an agency subject to the FOIA, and directed it to comply with both the FOIA and the FRA. The court carved out an exception, however, for the records of high-level officials of the NSC who serve solely to advise and assist the President. Armstrong v. Executive Office of the President, 877 F.Supp. 690, 705-06 (D.D.C.1995).

The Government appeals, arguing that because the NSC does not exercise substantial authority, independent of the President, it is not an agency within the meaning of the FOIA and that its treatment as such would so intrude upon the core functions of the President as to "raise a significant constitutional concern" about the separation of powers. Armstrong cross-appeals, challenging the exception for high-level officials who act solely as advisers to the President.

Because the NSC operates in close proximity to the President, who chairs it, and because the NSC does not exercise substantial independent authority, we conclude that the NSC is not an agency within the meaning of the FOIA. Accordingly, we reverse the judgment of the district court without reaching the question raised by the plaintiffs' cross-appeal.

I. Background

The statutory mandate of the NSC is generally "to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security" and to perform "such other functions as the President may direct." National Security Act of 1947, 50 U.S.C. §§ 402(a)-(b). The Council members are the President and certain cabinet-level officials, including the National Security Adviser (NSA)--formally, the Assistant to the President for National Security Affairs. The NSC staff, which numbers about 150 persons, is headed by an Executive Secretary, who reports to the NSA, and whom the President appoints without need of Senate confirmation. Id. § 402(c). ^*

The Presidential Records Act, 44 U.S.C. § 2201 et seq., which applies to most NSC documents, provides in part that a president's records are to be made publicly available five years after he leaves office, except that national defense and certain other information is to be made available no later than 12 years after the end of a president's term. § 2204. For purposes of the PRA, presidential records do not include "any documentary materials that are ... official records of an agency," as the term "agency" is defined in the FOIA, 5 U.S.C. § 552(f). 44 U.S.C. § 2201(2)(B)(I). At the same time, the coverage of the FRA is coextensive with the definition of "agency" in the FOIA, see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C.Cir.1993). As a result, no record is subject to both the FRA and the PRA: "The FRA describes a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different and less rigorous regime." Id.

The PRA and the FRA differ in several respects that are of concern to the parties to this case. First, while both laws require the preservation of records, the procedures to prevent improper destruction of documents covered by the FRA are significantly more demanding; hence, the district court ordered the NSC to adopt new guidelines in order "to ensure that non-Presidential records are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act." 877 F.Supp. at 707. Second, record-keeping requirements of the FRA are subject to judicial review and enforcement; those of the PRA are not. Armstrong v. Bush, 924 F.2d 282, 295 (D.C.Cir.1991). Third, the joint regime of the FRA and the FOIA can affect a president's daily operations during his term of office, while the PRA is applicable to a president's papers only after he has left office. Fourth, insofar as NSC records are subject to the FRA, a president may not take such documents with him upon leaving office (as past presidents have generally done) without the approval of the Archivist. 44 U.S.C. §§ 3303, 3303a; see also 44 U.S.C. § 3106 (Attorney General may initiate legal action to retrieve records unlawfully removed).

The legal controversy over procedures for the preservation of NSC records has a lengthy and complex history, which is fully recounted in Armstrong, 1 F.3d at 1280-82. In January 1989 Armstrong made a request under the FOIA for all documents stored in the EOP and the NSC electronic communications systems since their installation in the mid-1980's. At the same time Armstrong sought a declaration in district court that those electronic documents and associated backup tapes are federal or presidential records, and an injunction prohibiting their destruction. For our present purpose it is sufficient to recall that the district court concluded that certain items stored in the NSC's computer system are records subject to the FRA, and that the NSC's guidelines relating to the preservation of those records were arbitrary and capricious. Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C.1993). When, four months thereafter, the Government still had not promulgated new guidelines for the management of those electronic records, the district court entered an order of contempt. 821 F.Supp. 761 (D.D.C.1993). On appeal we agreed that the NSC's guidelines were inadequate, but we reversed the contempt citation, which was premised upon the Government's failure to act by a date certain. 1 F.3d at 1274. At the same time, upon Armstrong's cross-appeal challenging the NSC's procedures for classifying records, we remanded the matter for the district court to determine whether the NSC properly distinguishes between presidential and federal records. Id.

The Office of Legal Counsel then rendered an opinion reversing the position it had taken in 1978 and declaring that the NSC is not an agency subject to the FOIA and therefore does not have to comply with the FRA. Memorandum of Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel to Alan J. Kreczko, Special Assistant to the President, Sept. 20, 1993. President Clinton adopted the OLC's new position but instructed his NSA, Anthony Lake, that the NSC should voluntarily disclose "appropriate" records, including those that had been "transferred by one Administration to another for transition and continuity purposes." Memorandum from the President, Mar. 2, 1994. The Executive Secretary thereupon revoked the NSC's FOIA guidelines and asserted that all NSC documents are presidential records, exempt from both the FOIA and the FRA. Memorandum of William H. Itoh to William H. Leary, Mar. 25, 1994.

The district court then issued the decision that we now review. The court rejected the OLC's analysis and held that the NSC is an agency subject to the FRA and must maintain and preserve its records in accordance with that statute. 877 F.Supp. at 695. According to the district judge, the NSC does not solely advise and assist the President. Id. at 700. Rather, the NSC exercises authority independent of the President in several areas, including: overseeing the CIA, providing guidance and direction to the intelligence community, and protecting classified information. Id. at 702-03. Nonetheless, the court held that in "limited circumstances" when "high level officials of the NSC ... act not as members of an agency but, solely as advisors to the President," the resulting records are governed by the PRA, not by the FRA. Id. at 705. In the alternative, the district court held that the NSC should be treated as an agency because the NSC had itself previously determined that it was an agency and operated...