Gale v. Andrus

• Decision Date: 08 August 1980
• Docket Number: No. 79-1274,79-1274
• Citation: 643 F.2d 826,207 U.S.App.D.C. 76
• Parties: Roger W. GALE, Appellant, v. Cecil D. ANDRUS, Secretary, Department of Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 826

643 F.2d 826

207 U.S.App.D.C. 76

Roger W. GALE, Appellant, v. Cecil D. ANDRUS, Secretary, Department of Interior.

No. 79-1274.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 8, 1980.

Decided Aug. 8, 1980.

Appeal from the United States District Court for the District of columbia.

(D.C. Civil No. 77-1349).

Douglas L. Parker, Washington, D.C., for appellant.

Kenneth S. Canfield, Atty., Dept. of Justice, Washington, D.C., with who Carl S. Rauh ^*, U.S. Atty., and Leonard Schaitman, and Joseph B. Scott, Attys., Dept. of Justice, Washington, D.C., were on brief, for appellees.

Before TAMM and MacKINNON, Circuit Judges and OBERDORFER ^**, United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge MacKINNON.

Concurring opinion filed by District Judge OBERDORFER.

MacKINNON, Circuit Judge:

Roger Gale (Appellant) sought an injunction in the district court to compel the Department of Interior (Appellee) pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1976) (FOIA), to disclose certain documents pertaining to him which were allegedly collected and held by the government of the Trust Territory of the Pacific Islands. The court held that the Freedom of Information Act did not apply and denied Gale's motion for summary judgment and dismissed his claim for lack of subject matter jurisdiction. We affirm on the grounds that the government of the Trust Territory (1) is not an "agency" under FOIA, (2) is not specifically included in the statute as it must be to make the Act applicable to it, and (3) is entitled to the statutory exemption for governments of territories and possessions because it is even more removed from substantial control by the United States than are the governments of our traditional territories and possessions.

I. FACTS

Gale is a citizen of the United States and formerly resided in the Trust Territory of the Pacific Islands. While there, he believed that he was subject to surveillance by the Trust Territory government through interception of his mail and monitoring of his telephone calls. Gale sought to determine if records were being kept on him. To this end, by letter of February 16, 1977, he requested from the Department of Interior, the Territory's supervising agency in the United States as explained in II infra, all records (1) in the Department files, including those maintained by (2) the Trust Territory, and by (3) the Office of Micronesian Status Negotiations which referred to him or to an organization known as "Friends of Micronesia" with which he was associated. (Appellee's Addendum 5) The Office of Territorial Affairs of the Department of Interior produced only one document from it files. However, it refused to search the files of the government of the Trust Territory or the Office of Micronesian Status Negotiations, explaining to Gale that the Department of Interior does not control the files of the Trust Territory, and the Office of Micronesian Status Negotiations maintains its own files.

Gale appealed this decision to the Department of Interior's Freedom of Information Act Officer on March 9, 1977, arguing that "the administrative structure of the Trust Territory, including the offices of the High Commissioner and the Attorney General, is a part of the Department of the Interior and, therefore, that the files possessed by Territory officials and their agents must be searched for the records which we seek." (Appellee's Addendum 9) The Assistant Secretary of the Interior denied Gale's appeal and attached a memorandum from the Office of the Solicitor explaining that the Trust Territory government was a separate and distinct legal entity outside the scope of the Freedom of Information Act (FOIA). (Appellee's Addendum 12-14)

Having exhausted his administrative remedies, Gale filed this suit in the district court to compel the Department of Interior to disclose any records maintained by the High Commissioner of the Trust Territory and his subordinates that referred to Gale or the Friends of Micronesia. Thereafter, Gale moved for summary judgment, and the Department of Interior moved to dismiss for lack of subject matter jurisdiction.

The district court granted the Department's motion and denied Gale's on three grounds. First, it held that the government of the Trust Territory is not an "agency" with the meaning of Section 2 of the Administrative Procedure Act, 5 U.S.C. § 551 (APA). The term agency as defined by this section applies for purposes of the FOIA. Thus the court lacked subject matter jurisdiction. Second, even assuming the government of the Trust Territory is an agency for FOIA purposes, it is exempt from coverage under the FOIA by virtue of the APA exemption of "governments of the territories or possessions of the United States." 5 U.S.C. § 551(1)(C). Finally, the court held that "the laws of the United States do not automatically apply to the Trust Territory but only if specifically stated to apply or if a clear congressional intent is expressed in the legislative history. Neither the APA nor the FOIA evidence such congressional intention." (App. 96) Gale appeals each one of these holdings.

II. HISTORY AND STRUCTURE OF THE GOVERNMENT OF THE TRUST TERRITORY

The area collectively referred to as Micronesia covers over 2,000 islands and atolls in the western Pacific Ocean, including the Eastern and Western Caroline Islands, and the Marshall Islands. Between World War I and World War II they were governed by Japan under a League of Nations mandate. In 1947, the United States and the United Nations Security Council entered into a Trusteeship Agreement under which the United States became the "administering authority" and accepted administrative responsibility for the people of Micronesia. This area became known as the "Trust Territory". The United States received powers of administration, legislation, and jurisdiction over the territory subject to the provisions of the Agreement. See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301; T.I.A.S. No. 1665 (hereinafter Trusteeship Agreement). In addition the General Assembly of the United Nations, the Security Council and the Trusteeship Council each exercise some function in relation to the Trust Territory under the Charter of the United Nations, ch. XII, XIII, 59 Stat. 1048-1051, and the Trusteeship Agreement, 61 Stat. 3301-3305.

The United States also assumed the responsibility of promoting the development of self-government by the inhabitants of the islands. Id. at Art. 6. ¹ Ultimate review of the Trust Territory remained in the hands of the United Nations Trusteeship Council and Security Council. The Trusteeship Council is authorized to consider annual reports which must be submitted by the United States, accept and examine petitions from the inhabitants of the Territory, and periodically visit the Territory. Id. at Arts. 4, 13; Charter of the United Nations, Art. 87, 59 Stat. 1050-51.

The United States Congress delegated its administrative responsibility under the Trusteeship Agreement to the President, 48 U.S.C. § 1681(a), who then delegated it to the Department of Interior. Exec. Order No. 11021, 27 Fed. Reg. 4409 (May 9, 1962). The Secretary of Interior established a local government in Micronesia consisting of executive, legislative and judicial branches. Secretarial Order 2918, 34 Fed.Reg. 157 (Dec. 27, 1968) (hereinafter Order 2918). The High Commissioner of the Executive Branch (of the Trust Territory) is appointed by the President with the advice and consent of the United States Senate. 48 U.S.C. § 1681a. He is under the general supervision of the Secretary of the Interior, Order 2918, part II § 1, and has numerous executive responsibilities in the Trust Territory. These include the authority to submit proposed legislation to the Congress of Micronesia, id. at part II § 3, and the power to appoint officials to the executive branch, 2 Trust Territory Code § 24 (Supp. 1973).

The Secretary also appoints the Chief Justice and Associate Justices of the High Court, id. at part IV, while other judges are appointed by local administrators within the Trust Territory government. 5 Trust Territory Code §§ 204, 251, 301. The courts in Micronesia have general jurisdiction, Alig v. Trust Territory of the Pacific Islands, 3 Trust Territory Reports 603 (App.Div.1967), and are empowered under some circumstances to review actions of the High Commissioner. People of Saipan v. Department of Interior, 502 F.2d 90, 99 (9th Cir. 1974), cert, denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).

At the time of this action, the legislative branch consisted of a Senate and House of Representatives, Order 2918, part III § 1, whose members were elected locally. The Congress of the Trust Territory has authority to enact laws which may not be inconsistent with treaties or international agreements of the United States, laws of the United States expressly applicable to the Territory, Executive Orders, or Orders of the Department of Interior. Order 2918, part III § 2. Since this suit was commenced, the system of government has been changed as the Territory moves toward self-government. Pursuant to Secretary of Interior Order No. 3027, September 29, 1978, 43 Fed. Reg. 49858 (Oct. 25, 1978), entitled "Interim transition to governments based on locally developed constitution- Trust Territory of the Pacific Islands", the legislative authority of the Territory became vested in an Interim Congress of the Federated States of Micronesia, the Palua Legislature, and the Marshall Islands, Nitijela.

Finally, the laws of the United States do not automatically apply to the Territory unless they are specifically made applicable by Congress. The government contends in this proceeding that it treats the Territory as a political unit separate and distinct from the United States.

III. THE TRUST AGREEMENT

We hold that the...