Goland v. C.I.A.

Citation607 F.2d 339,197 U.S.App.D.C. 25
Decision Date27 June 1947
Docket NumberNo. 76-1800,76-1800
Parties, 3 Media L. Rep. 2341 Susan D. GOLAND and Patricia B. Skidmore, Appellants, v. CENTRAL INTELLIGENCE AGENCY et al. . Argued 5 Oct., 1977. Decided 23 May, 1978. Rehearing Denied 28 March, 1979. James H. Wallace, Jr., Washington, D. C., with whom Thomas C. Arthur and Mark H. Lynch, Washington, D. C., were on brief, Alan B. Morrison and Larry P. Ellsworth, Washington D. C., were on the motion to vacate and on the petition for rehearing, for appellants. John F. Cordes, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Rex E. Lee, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellees. Thomas C. Martin, Dept. of Justice, Washington, D. C., entered an appearance for respondent. Before BAZELON, TAMM and WILKEY, Circuit Judges. Opinion for the Court filed by WILKEY, Circuit Judge. NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE TABLE WILKEY, Circuit Judge: This case arises under the Freedom of Information Act (FOIA). 1 Plaintiffs Goland and Skidmore requested documents from the Central Intelligence Agency (CIA) relating to the legislative history of the Agency's organic statutes. In this suit they challenge the thoroughness of the CIA's search for responsive documents and the Agency's refusal to give them certain admittedly responsive material it does possess. The district court granted summary judgment in favor of the CIA. We affirm. I. FACTUAL BACKGROUND The chronology of events must be elaborated in some detail. On 2 May 1975 Sara Holtz 2 filed an FOIA request with the CIA, seeking access to "all records concerning the legislative history" of the National Security Act of 1947, 3 the CIA Act of 1949, 4 and two bills introduced into Congress in 1948 providing for the administration of the Agency. 5 Specifically, Holtz requested access to "all reports of the Committees of the House and Senate and the Conference Committee which reported on the bills, and any hearings
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

James H. Wallace, Jr., Washington, D. C., with whom Thomas C. Arthur and Mark H. Lynch, Washington, D. C., were on brief, Alan B. Morrison and Larry P. Ellsworth, Washington D. C., were on the motion to vacate and on the petition for rehearing, for appellants.

John F. Cordes, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Rex E. Lee, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellees.

Thomas C. Martin, Dept. of Justice, Washington, D. C., entered an appearance for respondent.

Before BAZELON, TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

WILKEY, Circuit Judge:

This case arises under the Freedom of Information Act (FOIA). 1 Plaintiffs Goland and Skidmore requested documents from the Central Intelligence Agency (CIA) relating to the legislative history of the Agency's organic statutes. In this suit they challenge the thoroughness of the CIA's search for responsive documents and the Agency's refusal to give them certain admittedly responsive material it does possess. The district court granted summary judgment in favor of the CIA. We affirm.

I. FACTUAL BACKGROUND

The chronology of events must be elaborated in some detail. On 2 May 1975 Sara Holtz 2 filed an FOIA request with the CIA, seeking access to "all records concerning the legislative history" of the National Security Act of 1947, 3 the CIA Act of 1949, 4 and two bills introduced into Congress in 1948 providing for the administration of the Agency. 5 Specifically, Holtz requested access to "all reports of the Committees of the House and Senate and the Conference Committee which reported on the bills, and any hearings which may have been held on these bills or related to the subject of the authority, organization and administration" of the CIA. 6

On 14 May the CIA responded to Holtz' letter, advising her that the documents she sought were congressional materials which would be available in the Library of Congress or the Government Printing Office. On 20 May 1975 Holtz wrote the Agency a second letter, stating her belief that hearings had been held on the bills she cited for which no transcripts were available in the Library of Congress, and requesting access to records of these hearings and to "any House, Senate or Conference Reports, besides those available in public libraries, that more fully explain the basis for the Committees' actions on these bills." 7

The Agency responded on 23 June 1975, informing Holtz that a search of its records had revealed that it possessed one document relating to the legislative history of the CIA's organic statutes which was not publicly available, namely, a stenographic transcript of Hearings held before the House Committee on Expenditures in the Executive Departments on 27 June 1947 (hereinafter "Hearing Transcript"). The Agency stated, however, that the Hearing Transcript had been classified "Secret" by Congress and could be declassified only by that body; it suggested that Holtz request declassification and release of the document from the House of Representatives. There were no further communications between Holtz and the CIA.

On 20 October 1975 plaintiffs Goland and Skidmore notified the CIA that they, like Holtz, were "investigating the authority, organization and administration" of the Agency, and requested "the documents requested by Ms. Holtz' letters." 8 Treating the CIA's failure to respond within ten days as a denial of their request, 9 plaintiffs on 20 November 1975 appealed that denial. On 26 November 1975 the CIA offered to send plaintiffs copies of five previously published hearings and reports, even though these documents were "generally available in the Library of Congress and various depository libraries." 10 With respect to the Hearing Transcript, however, the CIA reiterated its position that the Transcript was a "legislative document under the control of the House of Representatives" which was "classified 'Secret' " and to which FOIA did not apply. 11

On 16 December 1975 Goland and Skidmore wrote the CIA to "elaborate on the basis of (their) appeal," asserting that the Agency's letter of 26 November failed to make clear whether the Transcript and the five published documents accounted for all the material they had requested. 12 In addition, plaintiffs expanded the scope of their request to embrace not only the reports and hearings they had sought originally, but also any "materials which may have been the basis for testimony at hearings" or "materials used by or submitted by the CIA or other Executive Branch sources which are included in (unpublished) reports" on the cited bills. 13 When the CIA failed to respond to this supplemental appeal within 20 working days, 14 plaintiffs filed suit on 28 January 1976.

On 10 March 1976 the CIA notified plaintiffs' counsel that it had identified two additional documents responsive to plaintiffs' FOIA request which "had not previously been located." 15 The first document was entitled "Statement of Lt. Gen. Hoyt S. Vandenberg, Director of Central Intelligence," delivered before the Senate Armed Services Committee on 29 April 1947. This document was released to plaintiffs in full. The second document was entitled "Statement of the Director of Central Intelligence (Hillenkoetter) Before the House Armed Services Committee (on) 8 April 1948" (hereinafter "Hillenkoetter Statement"). This document was released to plaintiffs with certain portions (about 20% Of the total) deleted; the Agency explained that the deleted material was exempt from disclosure under FOIA.

II. COURSE OF THE LITIGATION

The complaint sought an injunction directing the CIA to make available for copying all "records requested in plaintiffs' . . . letter" of 20 October 1975, 16 a declaratory judgment holding the CIA's allegedly restrictive definition of "agency records" 17 invalid, and an award of attorneys' fees. On 10 March 1976 plaintiffs filed interrogatories, a request for production of documents, and a notice of deposition to the CIA. Rather than submit to discovery, the CIA on 5 April 1976 filed a motion for summary judgment based on affidavits. The Agency contended that the Hearing Transcript was not an "agency record" but rather a congressional document not subject to FOIA; 18 that both the Transcript and the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 3, relating to matters "specifically exempted from disclosure by statute;" 19 that both the Transcript and the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 1, relating to matters "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy;" 20 that the CIA's search had been complete and there existed no other responsive documents; and that plaintiffs lacked standing to challenge the CIA's definition of "agency records" inasmuch as the Agency had not relied on that definition in processing their FOIA request. Plaintiffs responded to the motion principally on the grounds that discovery was needed to resolve disputed issues of fact.

Judge Hart granted the CIA's motion for summary judgment on 26 May 1976. 21 He found that the Hearing Transcript was a congressional document outside the ambit of FOIA, that the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 1, and that no further discovery was justified since the CIA had "made a full search in good faith." 22 Judge Hart made no findings about plaintiffs' standing to challenge the CIA's definition of agency records or about their request for attorneys' fees. We consider these issues in turn.

III. ANALYSIS
A. The Hearing Transcript.

The FOIA requires that an agency make "agency records" available to the public upon reasonable request. 23 The Act does not define "records" or "agency records." 24 Plaintiffs argue that since the CIA is an "agency" its possession of the Hearing Transcript, without more, renders that document an "agency record" subject to disclosure absent specific exemption. 25 The CIA argues that possession is not enough; it points out that "agency," as defined by the Administrative Procedure Act, "does not include (A) the Congress . . . ," 26 and that the Hearing Transcript, regardless of whether it is a "record," is not an "Agency record" on the facts of this case. 27 The district court found that the Hearing Transcript was "released to the CIA for limited purposes as a reference document only" and that it "remain(ed) within the control of Congress; " 28 the court concluded that the Transcript was in consequence a "Congressional document," 29 and not an "agency record" within the meaning of FOIA. We agree.

At the outset, we reject plaintiffs' argument that an agency's possession of a document Per se dictates that document's status as an "agency record." 30 We base our conclusion both on precedent and on policy. The precedent is the Tenth Circuit's opinion in Cook v. Willingham, 31 the only decision cited to us or discovered by our own research that is squarely on point. In Cook, a prisoner sought a copy of his presentence investigation report under FOIA. Although the document was physically in the possession of the warden of a United States penitentiary, the Tenth Circuit held the place of possession not controlling. Noting that FOIA "does not apply to 'the courts of the United States,' " 32 it concluded that the presentence report, ...

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