Ryan v. Department of Justice, s. 79-1777
| Citation | 199 U.S.App.D.C. 199,617 F.2d 781 |
| Decision Date | 25 February 1980 |
| Docket Number | Nos. 79-1777,79-1778,s. 79-1777 |
| Parties | , 5 Media L. Rep. 2345 Tom W. RYAN, Jr., Missouri Public Interest Research Group, Appellants, v. DEPARTMENT OF JUSTICE. Charles R. HALPERN, Judicial Selection Project, Dorothy J. Samuels, Committee for Public Justice, Appellants, v. DEPARTMENT OF JUSTICE. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia. (D.C.Civil Nos. 79-1042 & 79-1043)
Girardeau A. Spann, Washington, D. C., with whom Alan B. Morrison and David C. Vladeck, Washington, D. C., were on brief, for appellants.
Joseph B. Scott, Atty., Dept. of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.
Before McGOWAN and WILKEY, Circuit Judges, and GESELL *, United States District Judge for the District of Columbia.
Opinion for the Court filed by WILKEY, Circuit Judge.
This case is an appeal from a district court order granting summary judgment to the Government in a Freedom of Information Act (FOIA) suit, on grounds that the requested documents were not "agency records" for FOIA purposes. We find on the basis of the undisputed facts that the documents are agency records; we therefore reverse with instructions to enter summary judgment for plaintiffs on this issue. We also consider the applicability of FOIA Exemption 5 to these documents, and remand for the district court to determine the extent to which that exemption bars disclosure.
In order to guide the selection of new federal district court judges, President Carter issued "merit selection" guidelines in Executive Order 12097. 1 This Order charges the Attorney General with the duty to evaluate potential nominees, receive recommendations from others, evaluate selection processes, and recommend persons to the President for appointment. Included in this task is the obligation to consider whether an affirmative effort has been made to identify qualified candidates, including women and members of minority groups. In November 1978 the Attorney General sent to all Senators a questionnaire inquiring about their procedures for selecting and recommending potential nominees. By June 1979 the Attorney General had received more than fifty responses.
In early 1979 plaintiffs sought FOIA disclosure of questionnaire responses from the Department of Justice, as part of an effort to monitor federal judicial appointments and their inclusion of women, racial minorities, and "public interest" lawyers. The Department of Justice denied disclosure, claiming that the responses were not agency records within the scope of the FOIA and were exempt under FOIA Exemption 5 as pre-decisional advisory material.
Plaintiffs filed suit in United States District Court to compel disclosure. On 11 July 1979 the district court, ruling on cross-motions for summary judgment, granted judgment for the Government. The district court held the documents not to be agency records, and thus found it unnecessary to rule on the Exemption 5 issue, which had been briefed and argued. The court also conducted in camera inspection of five randomly selected questionnaire responses. Plaintiffs appealed to this court, and we have taken expedited action to resolve the case before the President's completion of the judicial selection process renders plaintiffs' action futile.
In several prior FOIA cases courts have been called upon to determine whether requested documents are "agency records." This issue commonly arises when the requested documents are in the possession of an agency but were created by an entity not defined as an "agency" under the FOIA: Congress, federal courts, outside consultants not in corporations controlled by the government, 2 or the President's immediate personal staff and units in the Executive Office whose sole function is to advise and assist the President. 3 For such cases the FOIA does not specify a test for determining what is an agency record. 4
The straightforward question of who has physical possession of documents has not sufficed, in cases before this court, to define whether documents are agency records. 5 A simple possession standard would permit agencies to insulate their activities from FOIA disclosure by farming out operations to outside contractors. It would also create a severe problem whenever confidential congressional documents or materials from the President's immediate staff come into the possession of an agency, as may occur when Congress oversees and supervises an agency. A standard that automatically made such records subject to FOIA disclosure as soon as they are transferred to agency hands would seriously impair Congress's oversight role. 6
Recognizing these difficulties, this court has adopted a standard more consistent with the intent and general framework of the FOIA disclosure system. Our opinion in Goland v. Central Intelligence Agency 7 examined this issue in the context of a FOIA request for a congressional document that was in the hands of an agency. We adopted a standard of control rather than possession: "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." 8 Under the Goland standard, the court looks at the circumstances under which the document was generated whether it was generated by a non-agency, and how, and why and at the non-agency's intent in transferring the document to the agency. In Goland, Congress's actions generating the document during an executive session of a committee, marking the document "Secret," and transferring it to the CIA solely for internal reference purposes, showed that Congress intended to refrain effective control while the document was in agency hands. 9
Goland follows the structure and intent of the FOIA by determining what entity controls the document and deciding whether that entity is within the category of "agency" defined by the Act. An earlier decision of this court pursued a similar approach, inquiring whether the generation of a document by consultants of the Office of Science and Technology brought it within control of that Office so as to make it a "record," and whether that Office was an "agency" or rather a part of the President's staff. 10 In a more recent case we have again examined whether an agency controlled the documents of an outside entity, in the sense of being involved in the "core planning or execution" of a program, such as to make the documents agency records within the FOIA. 11
In the present case, although the requested documents were in the possession of the Department of Justice, the district court concluded that the history and purpose of their generation showed them not to be agency records under the FOIA. The court found that the documents did not belong to and were not within the control of either the Attorney General who possessed them, the Senators who participated in their generation, the state nominating commissions about which they reported, or the President for whose ultimate benefit they were created. Rather, the court found, the documents were the "collective product and property" of all of these entities, none of which were agencies for FOIA purposes. The court concluded that the Attorney General was not an "agency" in this case because he was acting as "counsel and advisor to the President," in furtherance of the President's power to nominate federal judges. 12
We find, on the contrary, that the requested documents are in the control of the Attorney General and the Department of Justice which he heads. The Department possesses the documents; and while this factor is not conclusive on the crucial issue of control, it is certainly relevant. Unless there is evidence of control by some other entity, we must conclude that the Attorney General and his Department control these documents. We find no such evidence. Senators generated these materials at the specific request of the Attorney General, and they gave no indication that they wished to limit his use of them. There are no express or reasonably implied senatorial instructions concerning the Attorney General's disposition of these documents. The Senators gave no indication that their responses were to be treated as secret or sensitive, and nothing in the Attorney General's questionnaire or other circumstances indicated that Senators would have the prerogative to maintain secrecy. On this record we cannot find control by the Senators. Nor have the nominating commissions exercised any degree of control over the documents.
Although the documents are for the ultimate benefit of the President in a nominating role that is exclusively his, we find that the Attorney General was acting as an independently controlling entity, and not a mere conduit. The questionnaires solicited responses from Senators at the request of the Attorney General, not the President. In his cover letter enclosed with the questionnaires, the Attorney General stated the independent role he was to play in this process: he was to consider certain factors before making his own recommendations to the President as to judicial nominees. This is an independent exercise of judgment that the Attorney General has traditionally taken in the judicial nomination process. The logical deduction from the facts is that the Attorney General was to control the questionnaire responses for the purpose of carrying out his independent duties. We have no evidence before us that the President in any way diminished the Attorney General's control over these documents; there is no indication...
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