ILLINOIS INST., ETC. v. United States Dept. of Labor

• Decision Date: 27 August 1982
• Docket Number: No. 81 C 1629.,81 C 1629.
• Citation: 545 F. Supp. 1229
• Parties: ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION, an Illinois nonprofit corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, an agency of the executive branch of the United States government, Raymond Donovan, Secretary of Labor, Thorne Auchter, Assistant Secretary of Labor for Occupational Safety and Health, Alfred Zuck, Assistant Secretary of Labor for Administration and Management, Office of Management and Budget, an agency of the executive branch of the United States government, and David Stockman, Director of the Office of Management and Budget, Defendants.
• Court: U.S. District Court — Northern District of Illinois

545 F. Supp. 1229

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION, an Illinois nonprofit corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, an agency of the executive branch of the United States government, Raymond Donovan, Secretary of Labor, Thorne Auchter, Assistant Secretary of Labor for Occupational Safety and Health, Alfred Zuck, Assistant Secretary of Labor for Administration and Management, Office of Management and Budget, an agency of the executive branch of the United States government, and David Stockman, Director of the Office of Management and Budget, Defendants.

No. 81 C 1629.

United States District Court, N. D. Illinois, E. D.

August 27, 1982.

Michael D. Freeborn, Rooks, Pitts, Fullagar, & Poust, Chicago, Ill., for plaintiff.

Roderick Palmore, Asst. U. S. Atty., Chicago, Ill., Thomas R. Kline, Andrew M. Wolfe, Barbara L. Gordon, J. Paul McGruth, Asst. Attys. Gen., Washington, D. C., for defendants.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

This case requires us to construe the term "agency records" under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), in a somewhat unusual context. Plaintiff Illinois Institute for Continuing Legal Education seeks disclosure of a two volume "briefing book" on the United States Department of Labor (DOL) prepared by then President-elect Reagan's transition staff in December of 1980. Named as defendants are Secretary of Labor Raymond Donovan and the DOL.¹ Defendants have accorded plaintiff access to some of the material they seek, but have refused to make complete disclosure because (1) the second volume of the briefing book is not an "agency record" subject to the FOIA's commands, and (2) some of the material is exempted from disclosure under § 552(b) of the FOIA. Cross-motions for summary judgment are pending before the court.

I

We turn first to defendants' claim that volume two of the briefing book does not qualify as an "agency record" subject to the FOIA. The FOIA provides that,

On complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

5 U.S.C. § 552(a)(4)(B) (1976). "Under 5 U.S.C. § 552(a)(4)(b) federal jurisdiction is dependent upon a showing that an agency has (1) `improperly' (2) `withheld' (3) `agency records.'" Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). The presence of "agency records" is therefore essential to a FOIA claim. Plaintiff claims the volume qualifies as an "agency record" under two separate theories.

First, plaintiff argues that the President-elect's transition team is an "agency" within the meaning of the FOIA, and that the volume qualifies as a "record" of the transition team.² Defendants do not dispute that the volume is a "record," but do argue that the transition team is not an "agency."

The FOIA states,

For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, government-controlled corporation, or other establishment in the executive branch of the Government.

5 U.S.C. § 552(e) (1976). Section 551(1) in turn provides that "`agency' means each authority of the Government of the United States whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1) (1976). The legislative history of the FOIA indicates that Congress intended the term "agency" to reach entities "which perform governmental functions and control information of interest to the public." House Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6274, reprinted in Subcommittee on Government Information and Individual Rights of the House Committee on Government Operations & Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) — Source Book: Legislative History, Texts, and Other Documents 128 (Jt. Comm. Print 1975) hereinafter cited as Source Book. Thus, an entity qualifies as an "agency" under the FOIA only if it has authority to perform specific governmental functions. See Niemeir v. Watergate Special Prosecution Force, 565 F.2d 967, 969 n.2 (7th Cir. 1977); Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975); Soucie v. David, 448 F.2d 1067, 1073 (D.C.Cir.1971);<sup>3</sup>Ciba-Geigy Corp. v. Mathews, 428 F.Supp. 523, 527-28 (S.D.N.Y.1977); Wolfe v. Weinberger, 403 F.Supp. 238, 240-41 (D.D.C.1975); Gates v. Schlesinger, 366 F.Supp. 797, 798-99 (D.D. C.1973). An entity which is autonomous of the government is not an "agency" under the Act. See Public Citizen Health Research Group v. HEW, 668 F.2d 537 (D.C. Cir.1981); Irwin Memorial Blood Bank v. American National Red Cross, 640 F.2d 1051 (9th Cir. 1981); Forsham v. Califano, 587 F.2d 1128, 1138-39 (D.C.Cir.1978), aff'd sub nom. Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976); Lombardo v. Handler, 397 F.Supp. 792, 795-96 (D.D.C.1975), aff'd mem., 546 F.2d 1043 (D.C.Cir.1976), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977). The principle that autonomy from the government precludes a finding that an entity is an "agency" under the Act was endorsed by the Supreme Court in Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980), where the Court held that private entities receiving grants of federal funds and subject to federal supervision are not "agencies" within the meaning of the FOIA, since they retain substantial autonomy from the Government, noting that Congress has always attempted to "preserve grantee autonomy," id. at 179, 100 S.Ct. at 983. It concluded "that Congress did not intend that grant supervision short of Government control serve as a sufficient basis to make the private records `agency records' under the Act...." Id. at 182, 100 S.Ct. at 985.

We now must examine the President-elect's transition team to determine whether it has the characteristics of an "agency" under the FOIA. There appears to be no reported case which has reached this question.⁴

Provision for the President-elect's transition team is made in the Transition Act of 1963, which provides in pertinent part,

The Administrator of General Services, referred to hereafter in this Act as "the Administrator," is authorized to provide, upon request, to each President-elect and each Vice-President-elect, for use in connection with his preparations for the assumption of official duties as President or Vice President necessary facilities, including—

. . . . .

(2) Payment of the compensation of members of office staffs designated by the President-elect or Vice-President-elect at rates determined by them not to exceed the rate provided by the classification Act of 1949, as amended, for grade GS-18: Provided, That any employee of any agency of any branch of the Government may be detailed to such staffs on a reimbursable or nonreimbursable basis with the consent of the head of the agency; and while so detailed such employee shall be responsible only to the President-elect or Vice-President-elect for the performance of his duties; Provided further, That any employee so detailed shall continue to receive the compensation provided pursuant to law for his regular employment, and shall retain the rights and privileges of such employment without interruption. Notwithstanding any other law, persons receiving compensation as members of office staffs under this subsection, other than those detailed from agencies, shall not be held or considered to be employees of the Federal Government except for purposes of the Civil Service Retirement Act, the Federal Employees' Compensation Act, the Federal Employees' Group Life Insurance Act of 1954, and the Federal Employees Health Benefits Act of 1950;

Pub.L.No.88-277, § 3(a), 78 Stat. 153 (1964), as amended by Pub.L.No.94-499, §§ 1-2, 90 Stat. 2380 (1976), codified at 3 U.S.C. § 102 note (1976).

The Transition Act manifests a congressional concern with preserving the autonomy of the transition staff from the federal government. Even federal employees serving on the staff are insulated from the government. The transition staff is clearly not in the control of the incumbent President; it answers only to the President-elect. As such, the staff is outside of the executive branch, since "the Executive Power is vested in a President of the United States of America," U.S.Const. art. II, § 1, and the transition staff is outside the control of the President. The autonomy accorded the transition staff compels the conclusion that the staff is not within the executive branch of government and hence not an "agency" within the meaning of § 552(e) of the FOIA.⁵

Plaintiff's second theory is that the second volume of the briefing book is an "agency record" of the DOL. There is no dispute that the DOL is an "agency" under the FOIA; the question defendants raise is whether the volume is an "agency record" of the DOL. In order to make this determination, the nexus between the volume and the DOL must be examined.

Only two copies of the disputed volume have ever been in the custody, control or possession of any DOL employees.⁶ The first is Secretary Donovan's personal copy. When Secretary Donovan took office, this copy was placed in a safe within the Secretary's vault and has remained in his exclusive control at all times. Apart from the defense of this case, no use whatsoever has been made of Secretary Donovan's copy since he became Secretary of Labor. Supplemental Declaration of James Hooley ¶ 2. The other copy was inadvertently left in the office of Daniel Lacey, a DOL official, by the...