Reporters Committee for Freedom of the Press v. Sampson

• Decision Date: 21 December 1978
• Docket Number: Nos. 77-2123,s. 77-2123
• Citation: 591 F.2d 944,192 U.S.App.D.C. 335
• Parties: , 4 Media L. Rep. 1866 The REPORTERS COMMITTEE FOR FREEDOM OF The PRESS, American Historical Association, American Political Science Association, James MacGregor Burns, Nat Hentoff, Donald G. Herzberg, William Leuchtenburg, Arthur Link, J. Anthony Lukas, Austin Ranney and Clement E. Vose, Appellants, v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al. Lillian HELLMAN et al. v. Arthur SAMPSON, General Services Administration, et al., The Reporters Committee for Freedom of the Press, et al., Appellants. Richard M. NIXON, Individually and as the Former President of the United States, et al. v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al., The Reporters Committee for Freedom of the Press, et al., Appellants. to 77-2125.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 944

591 F.2d 944

192 U.S.App.D.C. 335, 4 Media L. Rep. 1866

The REPORTERS COMMITTEE FOR FREEDOM OF The PRESS, American

Historical Association, American Political Science

Association, James MacGregor Burns, Nat Hentoff, Donald G.

Herzberg, William Leuchtenburg, Arthur Link, J. Anthony

Lukas, Austin Ranney and Clement E. Vose, Appellants, v. Arthur F. SAMPSON, Individually and as Administrator of

General Services, et al.

Lillian HELLMAN et al. v. Arthur SAMPSON, General Services Administration, et al., The

Reporters Committee for Freedom of the Press, et

al., Appellants.

Richard M. NIXON, Individually and as the Former President of the United States, et al. v. Arthur F. SAMPSON, Individually and as Administrator of

General Services, et al., The Reporters Committee

for Freedom of the Press, et al., Appellants.

Nos. 77-2123 to 77-2125.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 31, 1978.

Decided Dec. 21, 1978.

Leonard B. Simon, Washington, D.C., with whom Robert E. Herzstein, Andrew S. Krulwich, Mark J. Spooner, and Peter T. Grossi, Jr., Washington, D.C., were on the brief, for appellants.

Steven I. Frank, Atty., Dept. of Justice, Washington, D.C., a member of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for federal appellees.

R. Stan Mortenson, Washington, D.C., with whom Herbert J. Miller, Jr., Washington, D.C., was on the brief, for appellee Nixon.

William A. Dobrovir, Washington, D.C., entered an appearance for appellee Jack Anderson.

Richard J. Bacigalupo, Charles S. Rhyne, and William S. Rhyne, Washington, D.C., entered appearances for appellee Rose Mary Woods.

Before WRIGHT, Chief Judge, J. EDWARD LUMBARD, ^* Senior Circuit Judge for the Second Circuit, and TAMM, Circuit Judge.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Appellants here, plaintiffs below, seek access through the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), to Richard Nixon's presidential materials, which are in the control of the General Services Administration (GSA) pursuant to title I of the Presidential Recordings and Materials Preservation Act (the Materials Act), note following 44 U.S.C. § 2107 (Supp. V 1975); they also request a declaration that the government owns the materials. The district court granted the government defendants' motion to dismiss the plaintiffs' action on the ground that passage of the Materials Act rendered it moot. Nixon v. Sampson, 437 F.Supp. 654, 656 (D.D.C.1977). We reverse and remand for proceedings not inconsistent with this opinion.

I

Richard Nixon resigned his office as President of the United States on August 9 1974. On September 8, 1974, the same day that President Gerald Ford pardoned Mr. Nixon, the White House released the text of an agreement between Mr. Nixon and Arthur Sampson, Administrator of the GSA, concerning Mr. Nixon's presidential materials. ¹ Under the terms of the agreement, Mr. Nixon retained all legal and equitable title to the materials and the GSA agreed to house them. Access to the materials was strictly limited. Mr. Nixon agreed to deposit materials other than the tape recordings described below for three years, during which no one could gain access without his approval. Mr. Nixon reserved the right to withdraw any materials he desired after three years. Tape recordings of White House or Executive Office Building conversations were to remain on deposit until September 1, 1979, and access was limited to persons approved by the former President. After September 1, 1979, GSA agreed to destroy tape recordings upon Mr. Nixon's request. Finally, all tape recordings were to be destroyed when Mr. Nixon died, or on September 1, 1984, whichever event occurred first.

On October 17, 1974, Mr. Nixon brought a suit seeking a temporary restraining order and preliminary injunction to enforce the Nixon-Sampson agreement. ² Four days later, Jack Anderson, a journalist whose FOIA request for presidential materials had been denied on the basis of the Nixon-Sampson agreement, intervened to prevent implementation of the agreement. ³ Also on October 21, 1974, the Reporters Committee for Freedom of the Press, et al., ⁴ appellants here, filed suit seeking to restrain the agreement and to obtain access to the materials pursuant to the FOIA. ⁵ Three days later, Lillian Hellman and other members of the Committee for Public Justice, filed a similar action which sought specified presidential tape recordings. ⁶ All of these actions were consolidated.

On December 19, 1974, President Ford signed into law the Presidential Recordings and Materials Preservation Act, which included a provision giving the United States District Court for the District of Columbia exclusive jurisdiction to hear any challenges to the constitutionality of title I of the Act. ⁷ Mr. Nixon immediately filed a suit, Nixon v. Administrator, ⁸ to enjoin the operation of the Materials Act and asked that a three-judge court be convened to hear his constitutional challenges.

Before Mr. Nixon's request was acted upon, the district court issued an opinion in the consolidated cases, Nixon v. Sampson, 389 F.Supp. 107 (D.D.C.1975), but entry of the order implementing the opinion was stayed by this court pending the convening of a three-judge court. ⁹ The three-judge court held that the Materials Act was facially constitutional, ¹⁰ and the Supreme Court affirmed. ¹¹ Nixon v. Administrator, 408 F.Supp. 321 (D.D.C.1976), Aff'd, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).

After the Supreme Court's decision, attention turned again to the consolidated cases, Nixon v. Sampson. The government defendants moved to dismiss the actions as moot in light of Nixon v. Administrator. Appendix at 67. The district court granted the motion, Nixon v. Sampson, 437 F.Supp. at 656. The district court held that the Materials Act's access provisions mooted the requests for presidential materials under the FOIA and the Materials Act's provision guaranteeing the government's custody and control of the materials mooted the ownership issue. Id. at 655-56. Mr. Nixon, who supported the government defendants' motion to dismiss, Id. at 655 n. 5, joins those defendants as an appellee in this challenge to the district court's decision.

II

Appellees argued in the district court that the Materials Act provides the exclusive means for obtaining access to the recordings and materials. Appellants point to the language of section 104(d) of the Materials Act to support their contention that their FOIA requests should proceed. Section 104(d), note following 44 U.S.C. § 2107 (Supp. V 1975), provides:

The provisions of this title shall not in any way affect the rights, limitations or exemptions applicable under the Freedom of Information Act, 5 U.S.C. § 552 et seq.

In spite of the seemingly clear language of section 104(d), appellees contend that various principles of statutory construction mandate that the Materials Act be interpreted to block these FOIA requests. ¹² However, "even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). See Neuberger v. Commissioner, 311 U.S. 83, 88, 61 S.Ct. 97, 85 L.Ed. 58 (1940). Accordingly, we have examined the legislative history of section 104(d) and we conclude that the Materials Act does not bar processing of FOIA requests for the presidential materials in question.

Section 104(d) had its genesis in the report of the House Committee on House Administration, ¹³ which substituted a House version of the Materials Act for that passed by the Senate. ¹⁴ The report explicitly stated that none of the Materials Act's provisions regarding access to materials "are intended to limit access by the public, otherwise granted by the Freedom of Information Act." ¹⁵ When the bill was returned to the Senate, Senator Nelson offered a floor amendment to codify the expressed intent of the House Committee. The amendment became section 104(d). 120 Cong.Rec. 38532 (1974). In the subsequent House debate that preceded approval of the Senate amendment, Representative Brademas explained that the amendment "is intended to make clear that access to the material which may otherwise be authorized by the Freedom of Information Act shall not be limited by the provisions of this title." 120 Cong.Rec. 38646 (1974). With the purpose of congressional action so clear, our conclusion follows the "cardinal principle" of legislative interpretation: to give effect to the intent of Congress. City of New York v. Train, 161 U.S.App.D.C. 114, 123, 494 F.2d 1033, 1042 (1974), Aff'd, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975).

The appellees suggest, however, that the interpretation of section 104(d) we adopt may cause constitutional difficulties. The appellees argue that release of presidential materials without the specific statutory safeguards embodied in section 104(a) ¹⁶ might impair Mr. Nixon's constitutional rights. This contention is based on appellees' reading of Nixon v. Administrator, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). The Supreme Court, upholding the Materials Act in face of Mr. Nixon's claim that the archival screening process would impair his constitutional right to privacy, focused attention on the specific provisions of the Act that protect Mr. Nixon's privacy. The Court concluded:

(A)ppellant has a legitimate expectation of privacy in his personal communications. But the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant's status as a public figure, of his lack of any expectation of...