RCA Global Communications, Inc. v. FCC, Civ. A. No. 81-74.

• Decision Date: 16 October 1981
• Docket Number: Civ. A. No. 81-74.
• Citation: 524 F. Supp. 579
• Parties: RCA GLOBAL COMMUNICATIONS, INC., Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants.
• Court: U.S. District Court — District of Delaware

524 F. Supp. 579

RCA GLOBAL COMMUNICATIONS, INC., Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants.

Civ. A. No. 81-74.

United States District Court, D. Delaware.

October 16, 1981.

Henry A. Wise, Jr., Wilmington, Del., for plaintiff; Alexander P. Humphrey, IV, Robert F. Heath, Washington, D. C., of counsel.

Joseph J. Farnan, U.S. Atty., John X. Denney, Jr., Asst. U.S. Atty., Wilmington, Del., for F.C.C.; Stuart E. Schiffer, Acting Asst. Atty. Gen., Civ. Div., Vincent M. Garvey, Dina R. Lassow, Dept. of Justice, Lawrence S. Schaffner, Asst. Gen. Counsel, Nancy E. Stanley, Asst. Gen. Counsel, John P. Greenspan, Mark S. Hayes, Washington, D. C., of counsel.

Somers S. Price, Jr., of Potter, Anderson & Corroon, Wilmington, Del., for Western Union; William R. Weissman, of Wald, Harkrader & Ross, Washington, D. C., of counsel.

OPINION

STAPLETON, District Judge.

On February 20, 1981, RCA Global Communications, Inc. ("RCA Globcom") filed suit against the Federal Communications Commission ("FCC")¹ to compel the Commission to disclose some three thousand pages of documents. The documents are the fruits of a subpoena issued to the Western Union Telegraph Company ("Western Union"), which is the target of an ongoing FCC investigation. Along with its Freedom of Information Act ("FOIA")² Complaint, RCA Globcom submitted a request for a Vaughn v. Rosen³ index of the disputed records. Because the FCC offered two generic grounds for withholding the Western Union documents, the Court agreed to entertain the Commission's motion for summary judgment as to those grounds before requiring it to prepare an index.

I

A. The Western Union Investigation

Western Union provides domestic Telex and TWX service as a regulated monopoly. Western Union's lines also "interconnect" with those of International Record Carriers ("IRCs") which carry Telex messages abroad. According to complaints filed with the FCC, Western Union refused to provide interconnect service to IRCs in several "gateway" cities in which the FCC had authorized the international carriers to operate. By an Order dated July 17, 1980, the Commission initiated an investigation of Western Union's interconnection practices. The Order provided that the investigation would be "non-public," and that information obtained in the investigation would only be released upon notice to the party which had supplied the information to be disclosed, or upon completion. The purpose of the notice provision was to guarantee to the "supplying party" its rights to seek confidential treatment under FCC regulations. 47 C.F.R. § 0.459.

To further its inquiry, the FCC issued a subpoena duces tecum to Western Union requesting:

1. All documents regarding, referring or relating to interconnection between Western Union's Telex and TWX networks and the Telex networks of the international record carriers from May 1975 to the present.

2. All documents regarding, referring or relating to Western Union's costing and pricing (including discounts) of the domestic-haul portion of the inbound public message service from June 1977 to the present.

3. Document(s) demonstrating the organization of the Western Union Telegraph Company, including, but not limited to, major operational and administrative divisions and identification of supervisory personnel in those divisions from May 1975 to the present.

4. Documents constituting current formal and informal file indices of the Western Union Telegraph Company.

Western Union cooperated with the subpoena and delivered some three thousand pages of documents to the Commission.

B. RCA Globcom's FOIA Request

In a letter dated November 21, 1980, RCA Globcom filed a request to inspect the Western Union documents pursuant to the FOIA and 47 C.F.R. § 0.461. The FCC's Common Carrier Bureau, which regulates Telex service, denied the request on December 19, 1980. The Bureau explained that the material which RCA Globcom sought was exempt from disclosure under 5 U.S.C. § 552(b)(4) and (7)(A). Although it did not conduct a document by document review, the Bureau asserted a (b)(4) exemption because a "large number" of the Western Union documents contained "commercial or financial information which was privileged or confidential." It justified the (7)(A) exemption, protecting "investigatory records compiled for law enforcement purposes" release of which "would interfere with enforcement proceedings", because disclosure would inform RCA Globcom of the "scope, limits, and method" of an investigation in which RCA Globcom was potentially involved. Further, the Bureau ruled, release of subpoenaed documents might impair the FCC's ability to obtain voluntary compliance with its subpoenas in the future.

RCA Globcom appealed this ruling to the full Commission. While its administrative appeal was pending, RCA Globcom filed the present suit. The FCC's Order, released on March 24, 1981, affirmed the Common Carrier Bureau's claim to exemptions 4 and 7A, and adopted a third, new, rationale to justify withholding the Western Union documents. Relying on recent authority in the Court of Appeals for the District of Columbia Circuit, the Commission concluded that the Western Union files were not "agency records," and hence not subject to FOIA disclosure at all. The present Motion for Summary Judgment presents only the "agency records" and 7A exemption claims.

II Agency Records Under FOIA

The Freedom of Information Act requires public disclosure of agency records, upon request, with the exception of records exempted under Section 552(b). The Act nowhere defines an "agency record."⁴ The FCC urges me to apply a "control" test to determine whether a document created by a third party but within the physical possession of agency is an agency record within the compass of the FOIA.

The first case to adopt the control analysis was Goland v. CIA, 607 F.2d 339 (D.C. Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). Goland requested, among other things, the transcript of a 1948 House Committee hearing held in Executive Session. The agency refused to release the transcript because it remained under the control of the Congress, notwithstanding that it had been in the physical custody of the CIA for almost thirty years. The question, according to Judge Wilkey,

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 secrecy of the hearing, the "Secret" marking on the transcript, and the fact that the CIA used the transcript only for internal reference led the Court to the conclusion that the transcript remained under Congressional control.⁵ See also, Holy Spirit Association v. CIA, 636 F.2d 838 (D.C.Cir.1981).

The D.C. Circuit required disclosure in two subsequent FOIA cases which modify the Goland principle. In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), the Court found none of the indicia of control which determined the outcome in Goland. The Department of Justice solicited information from Senators regarding the process of selecting federal judicial nominees. Neither the questionnaires themselves, nor the responses by the Senators "indicated that the Senators would have the prerogative to maintain secrecy." Id. at 786. Furthermore, unlike the Goland transcript, the information contained in the questionnaires related to the "regular business" of the Department of Justice. See, Id. note 17 at 787.

In Carson v. Department of Justice, 631 F.2d 1008 (D.C.Cir.1980), the Court rejected the argument that presentence investigation reports were not agency records of the United States Parole Commission. Like the Goland transcript, a presentence report is created by a non-agency, the probation office of the sentencing court. Nevertheless, the Parole Commission's organic statute required it to consider the presentence report in making its release decisions.⁶ Noting that "the presentence report is, after all, central to the Parole Commission's primary function," Judge Wald found it "somewhat anamalous to hold that such reports do not constitute agency `records' for purposes of the FOIA." Id. at 1015. In both Ryan and Carson, the Court adopted Goland to take into consideration the function of the document in the administrative process.

Although the Supreme Court has not directly addressed the Goland test, two recent decisions establish the importance of a document's function to the determination of its status as an agency record. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), William Safire, a newspaper columnist, requested FOIA disclosure of the former Secretary of State's telephone logs. Kissinger maintained those logs while he was National Security Adviser to President Nixon, then transported them to his new office when he became Secretary of State. In denying Safire's request, the Court emphasized that "mere location of papers and material" did not "confer status as an agency record." Id. at 157, 100 S.Ct. at 972. The telephone logs, like Kissinger's other personal records and memorabilia, played no part in State Department decision-making. Since close personal advisers to the President were not part of an "agency" under FOIA, the State Department had no duty to disclose the logs to the public.

In Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980), a case involving records maintained by hospitals at the instance of the Department of HEW, the Court remarked that "mere possession" would not suffice to transform a document created outside an agency into an agency record. Id. note 16 at 185, 100 S.Ct. at 987. Justice Rehnquist, for the Court, went on to note with approval the only direct reference to the definition of ...