Holy Spirit Ass'n for the Unification of World Christianity v. Central Intelligence Agency, s. 79-2143

• Decision Date: 02 April 1981
• Docket Number: Nos. 79-2143,79-2202,s. 79-2143
• Citation: 636 F.2d 838
• Parties: HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. CENTRAL INTELLIGENCE AGENCY and Stansfield Turner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 838

636 F.2d 838

205 U.S.App.D.C. 91

HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. CENTRAL INTELLIGENCE AGENCY and Stansfield Turner.

Nos. 79-2143, 79-2202.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1980.

Decided Dec. 23, 1980.

As Amended April 2, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-0151).

Dorothy Sellers, Washington, D. C., for appellant.

Freddi Lipstein, Atty., Civ. Div., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Civ. Div., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Stanley M. Brand, Gen. Counsel to the Clerk, United States House of Representatives, Washington, D. C., with whom Steven R. Ross, Asst. Counsel to the Clerk, Washington, D. C., was on the brief, for amicus curiae, Clerk of the United States House of Representatives.

Before BAZELON, Senior Circuit Judge, and MIKVA and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In May of 1978, appellant (Unification Church) filed a request pursuant to the Freedom of Information Act (FOIA or Act), 5 U.S.C. § 552 (1976), for all Central Intelligence Agency (CIA or Agency) records relating to the Church or to its members. When the Agency failed to respond, appellant filed this action for injunctive relief. Since then, the Agency has disclosed some documents in their entirety but, claiming a variety of exemptions, has withheld parts or all of others. On cross-motions for summary judgment, and after examining the documents in camera, the court below ruled that most of the unreleased material was exempt. The court did, however, order disclosure of at least segments of nine documents. Each party appeals from that portion of the district court's order adverse to it. ¹

The Church appeals the court's ruling that about fifty of the documents were not agency records because they were subject to congressional control and therefore were exempt under 5 U.S.C. § 551(1)(A) (1976). Of these documents, thirty-five were generated by Congress and sent to the CIA for reasons that are in dispute. The remaining fifteen originated in the Agency but were related to congressional investigations; some of these records were sent to Congress and were then returned to the CIA again for reasons that are not entirely clear. We find that these fifty documents, even if once excluded from the FOIA as congressional records, are no longer covered by that exemption because Congress failed to express with sufficient clarity its intent to retain control over the documents. We therefore reverse the district court's holding with respect to these records and remand for consideration of other exemptions of the Act which the Agency claimed apply to these records and on which the court below had no occasion to rule.

The Church also disputes the district court's holding that the CIA could invoke FOIA exemption 3 and refuse to disclose ten documents in order to protect intelligence sources under 50 U.S.C. § 403(d)(3) (1976). Relying on this court's recent opinion in Sims v. Central Intelligence Agency, Nos. 79-2203 & 79-2554 (D.C.Cir. Sept. 29, 1980), we affirm the court's finding of exemption. ²

On cross-appeal, the CIA challenges the court's order of disclosure with respect to six documents. The Agency alleges three errors: that the court did not give substantial weight to the Agency's affidavits; that the court failed to articulate reasons for its disclosure order; and that the court refused to accept the Agency's post-judgment offer of further evidence in the form of an in camera affidavit. We reject all arguments raised on the cross-appeal.

I. COMMUNICATIONS BETWEEN CONGRESS AND THE CIA

A. Records Generated by Congress

Thirty-five of the documents the Church seeks are, in the words of the court below, "correspondence and memoranda originated by one of four congressional committees that investigated various aspects of Korean-American relations between 1976 and 1978." Mem. op. at 3, JA at 115 (footnote omitted). These materials were, the district court found, sent to the CIA for safekeeping. Relying on this court's opinion in Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C.Cir.1978), vacated in part 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 court below ruled that, because Congress retained control over the thirty-five documents, they were not "agency records" subject to disclosure under the FOIA.

Although Goland does stand for the proposition that records in an agency's possession may be congressional documents, as opposed to agency records, that case does not support the conclusion of the court below. In Goland, this court began by noting that "agency" as defined in the Administrative Procedure Act does not include Congress. See 5 U.S.C. § 551(1)(A) (1976). Finding that Congress has the authority to keep its records secret, the court articulated the following test for determining the applicability of the FOIA to documents such as those requested here:

Whether a congressionally generated document has become an agency record ... 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.

607 F.2d at 347. The court considered two factors dispositive: the circumstances attending the document's creation and the conditions under which it was transferred to the agency. Consideration of those factors led the court to hold that the document sought by plaintiffs there a stenographic transcript of hearings held before a House committee, which had been forwarded to the CIA was a congressional, rather than an agency, record.

Thus, Congress can assert its exemption from the FOIA; it can also reassert the exemption. But the exemption can be lost if there is a request for documents at a time when Congress has not designated the documents as falling within congressional control.

Comparison of the facts of Goland with those involved here convinces us that Congress did not indicate its intent to maintain control over the documents requested by the Church. The hearing transcript at issue in Goland was quite obviously meant to be secret: the congressional committee met in executive session to conduct the hearing; the stenographer and typist were sworn to secrecy; and the transcript was marked "Secret." In addition, the confidential nature of the transcript was evident it was known to contain "discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA's structure and disposition of functions." 607 F.2d at 347 (footnote omitted).

In contrast, the circumstances surrounding Congress' creation of the documents requested by the Church do not demonstrate any intent that they be kept secret. The district court failed to analyze this first element of the Goland test, and appellees can only assert that the records were "created in the context of sensitive investigations concerning Korean-American relations." Brief for Appellee at 31. Although perhaps sensitive, not every aspect of the work of these congressional committees was confidential; in fact, the House Subcommittee on International Relations published a 1200-page report on the investigation. Appellees' general characterization thus does not suffice to prove that no part of the thirty-five documents may be disclosed. ³

The second prong of the Goland test inquires whether Congress transferred the records in such a way as to manifest its intent to retain control. In Goland, for example, this court found that

(t)he fact that the CIA retains the Transcript solely for internal reference purposes indicates that the document is in no meaningful sense the property of the CIA; the Agency is not free to dispose of the Transcript as it wills, but holds the document, as it were, as a "trustee" for Congress.

607 F.2d at 347 (emphasis supplied).

Here, the Agency maintains and the district court agreed that the CIA was given the records for safekeeping. But the record does not support that finding. The Agency affidavit discussing these documents does not specify the purpose of their transfer to the CIA. See Affidavit of Frederick P. Hitz, CIA Legislative Council, JA at 99. ⁴ Moreover, that affidavit makes clear that only some congressional documents transferred to the CIA contain classified information or details of intelligence activities. See id. at 100.

As evidence of Congress' intent to retain control over these records, the court below and appellees do point to a letter to the CIA from the Clerk of the House of Representatives, which objected to the release of any portion of the thirty-five documents. See JA at 104. But this letter was written as a result of the Church's FOIA request and this litigation long after the actual transfer to the CIA. See id. ; Document Disposition Index, JA at 75. We do not consider the letter sufficient evidence that Congress forwarded the documents to the Agency only "for a limited purpose and on condition of secrecy." Goland, 607 F.2d at 348 n.48. Cf. Halperin v. Department of State, 565 F.2d 699, 705 (D.C.Cir.1977) (remarks regarding national security justification for classification of press conference transcript, which were made five months after classification and eight months after press conference, did not necessarily reflect true reasons for classification).

Comparison of the circumstances surrounding the transfer to the CIA of three sealed cartons of additional congressional documents is instructive. These records, which are not at issue here, also relate to Congress'...