WASH. LEGAL FDTN. v. US Sentencing Com'n, Civ. A. No. 93-986 (CRR).

• Decision Date: 07 July 1993
• Docket Number: Civ. A. No. 93-986 (CRR).
• Citation: 826 F. Supp. 10
• Parties: WASHINGTON LEGAL FOUNDATION, Plaintiff, v. U.S. SENTENCING COMMISSION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

826 F. Supp. 10

WASHINGTON LEGAL FOUNDATION, Plaintiff, v. U.S. SENTENCING COMMISSION, et al., Defendants.

Civ. A. No. 93-986 (CRR).

United States District Court, District of Columbia.

July 7, 1993.

COPYRIGHT MATERIAL OMITTED

Daniel A. Rezneck and Edward Sisson of Arnold and Porter, Daniel J. Popeo and Paul D. Kamenar of the Washington Legal Foundation of Washington, DC, for plaintiff.

Janet Reno, U.S. Atty. Gen. and Stuart E. Schiffer, Acting Asst. Atty. Gen., J. Ramsey Johnson, U.S. Atty. for the District of Columbia, Elizabeth A. Pugh and David H. Schanzer of U.S. Dept. of Justice, and John R. Steer of the U.S. Sentencing Com'n of Washington, DC, for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

The Court has before it the Defendants' and the Plaintiff's respective Motions for Summary Judgment in the above-captioned case, in which the Plaintiff, Washington Legal Foundation, seeks access to certain private meetings and documents of the United States Sentencing Commission's Advisory Working Group on Environmental Sanctions. Based upon the Motions, the opposition thereto, the underlying record, and the applicable law, the Court must grant the Defendants' Motion and deny the Plaintiff's Motion.

I. BACKGROUND

As part of the Sentencing Reform Act of 1984, Congress created the United States Sentencing Commission ("the Commission"). 28 U.S.C. §§ 991-98. The purpose of the Commission is to "establish sentencing policies and practices for the Federal criminal justice system" and to "develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing...." 28 U.S.C. § 991(b). The Commission was "established as an independent commission in the judicial branch of the United States." 28 U.S.C. § 991(a) (emphasis added), and its placement therein has been upheld by the Supreme Court. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

In February, 1992, the Commission established an Advisory Working Group on Environmental Sanctions ("the Advisory Group") to advise the Commission on the development of sentencing guidelines and policy statements with respect to organizations convicted of environmental offenses. The Advisory Group did not open its meetings to members of the public. Rather, the Advisory Group worked in private, generating a draft of recommended sentencing guidelines for environmental crimes which it released on March 5, 1993. The Advisory Group accepted public comments on the draft and held a public hearing on May 10, 1993. The Advisory Group plans to continue to meet privately until it completes its tasks as directed by the Commission.

The Plaintiff brought suit on May 12, 1993, after a number of attempts to gain access to the private meetings of the Advisory Group. The Plaintiff asserts that it is entitled to attend the meetings and to have access to the documents of the Advisory Group. The Plaintiff bases its claim on the Federal Advisory Committee Act, 5 U.S.C.App. 2, §§ 1-15, the federal common law of public records, and the scope of the Commission's powers as set forth in 28 U.S.C. §§ 991-98.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate in cases in which:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In this case, the facts are undisputed surrounding the creation of the Advisory Group here involved. Therefore, the Court is only required to evaluate whether the Advisory Group is required, as a matter of law, to conduct open meetings or to make its internal documents and memoranda available to the public. Consequently, the Court may decide the case on summary judgment grounds. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

II. BECAUSE THE ADVISORY GROUP WAS NOT "ESTABLISHED OR UTILIZED" BY AN "AGENCY" IN THE EXECUTIVE BRANCH WITHIN THE MEANING OF THE FEDERAL ADVISORY COMMITTEE ACT, THE ADVISORY GROUP IS NOT SUBJECT TO THE REQUIREMENTS OF THE ACT.

The Plaintiff claims that the Advisory Group is subject to the Federal Advisory Committee Act, 5 U.S.C.App. 2, §§ 1-15 ("FACA"), which contains detailed requirements as to public notice of meetings, access to records used by advisory committees, and as to the open nature of advisory committee meetings. However, the Defendants correctly argue that the Advisory Group is not subject to FACA. FACA governs only those advisory committees which, inter alia, are "established or utilized by one or more agencies," 5 U.S.C., App. 2, § 3(2)(C) (emphasis added), as an "agency" is defined for purposes of the Administrative Procedure Act, 5 U.S.C. § 551(1) ("APA").

Under the APA, an "`agency' means each authority of the Government of the United States," but does not include "the courts of the United States." 5 U.S.C. § 551(1)(B). This exemption has been construed to include not only courts in the traditional sense, but also "the entire judicial branch of the Government." In re Fidelity Mortgage Investors, 690 F.2d 35, 38 (2d Cir. 1982), cert. denied 462 U.S. 1106, 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983); Wacker v. Bisson, 348 F.2d 602, 608 n. 18 (5th Cir. 1965). Thus, administrative bodies established in the judicial branch are not subject to the APA or the FACA.

The Commission, by the very terms used in the statute creating it, is "an independent commission in the judicial branch." 28 U.S.C. § 991(a). Consequently, courts have held that the Commission is exempt from the APA, the Freedom of Information Act, and other federal statutes. See, e.g., United States v. Lopez, 938 F.2d 1293, 1297 (D.C.Cir.1991); Andrade v. United States Sentencing Commission, 989 F.2d 308 (9th Cir.1993); United States v. Frank, 864 F.2d 992, 1013 (3rd Cir.1988), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989). Placement of the Commission within the judicial branch does not constitute a violation of the separation of powers doctrine. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Thus, the Commission is not an "agency" for purposes of the FACA, and the Advisory Group is not subject to the requirements of the FACA.¹

The Plaintiff alternatively argues that, even if the Advisory Group was "established" by the Commission, as part of the judicial branch, the Advisory Group is still subject to FACA because it is "utilized" by the Department of Justice for advice and recommendations. Specifically, the Plaintiff claims that the Advisory Group is utilized by the Department of Justice because the Attorney General's representative to the Commission, Roger Pauley, has submitted comments with respect to the Advisory Group draft guidelines on behalf of the Department of Justice. Also, two of the eighteen members of the Advisory Group are employees of the Department of Justice.

However, the Plaintiff has failed to show that the Department of Justice exercises the level of influence necessary to establish that the Department of Justice utilizes or controls the independent, ad hoc Advisory Group. As the Court of Appeals for this Circuit has held, "`utilized' encompasses a group ... so `closely tied' to an agency as to be amenable to `strict management by agency officials.'" Food Chemical News v. Young, 900 F.2d 328, 332-33 (D.C.Cir.1990), quoting Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 462-63, 109 S.Ct. 2558, 2570, 105 L.Ed.2d 377 (1989). In this case, nothing suggests that the Advisory Group is subject to strict management by the Department of Justice, or that the Group is closely tied to the executive branch of the government. Consequently, because the Advisory Group was not established or utilized by an agency of the executive branch within the meaning of the FACA, the Advisory Group is not subject to the FACA's meeting and record requirements.²

III. BECAUSE THE DOCUMENTS SOUGHT BY THE PLAINTIFF DO NOT CONSTITUTE "PUBLIC RECORDS" WITHIN THE MEANING OF THE COMMON LAW, THE COMMON LAW RIGHT OF ACCESS DOES NOT APPLY TO THE DOCUMENTS SOUGHT BY THE PLAINTIFF.

The Plaintiff's second argument is that the documents sought should be released because of the common law right of access to public documents. The common law recognizes "a general right to inspect and copy public records and documents...." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). The right to inspect and copy such records is not absolute, however. Id. at 598, 98 S.Ct. at 1312. The "decision as to access is one left to the sound discretion of the trial court, a decision to be exercised in light of the relevant facts and circumstances of the particular case." Id.

Through this common law right, the Plaintiff seeks to open all documents of the Advisory Group to public inspection. However, the Plaintiff's claim goes far beyond the common law right of access. The right of access is limited to "public records," not every document contained within government files. See Schwartz v. Department of Justice, 435 F.Supp. 1203, 1204 (D.D.C.1977), aff'd, 595 F.2d 888 (D.C.Cir.1979). The documents sought in this case are not part of a public proceeding, nor are they official records, nor are they a final report by the Advisory Group. Rather, they are the predecisional materials upon which a final recommendation to the Commission may develop. The common law right of access does not extend to these materials. They are not designed for public release, they have no formal effect, and their release might well inhibit the "frank exchange of ideas and opinions" so essentially necessary for the performance of the duties of the United States Sentencing Commission or that of the Advisory Group here...