Wolfe v. Department of Health and Human Services, 82-1568

• Decision Date: 08 July 1983
• Docket Number: No. 82-1568,82-1568
• Citation: 229 U.S.App.D.C. 149,711 F.2d 1077
• Parties: , 9 Media L. Rep. 2024 Sidney M. WOLFE, M.D., Public Citizen Health Research Group, Appellants, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1077

711 F.2d 1077

229 U.S.App.D.C. 149, 9 Media L. Rep. 2024

Sidney M. WOLFE, M.D., Public Citizen Health Research Group Appellants, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES.

No. 82-1568.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 24, 1982.

Decided July 8, 1983.

Cornish F. Hitchcock, Washington, D.C., with whom William B. Schultz and Alan B. Morrison, Washington, D.C., were on the brief, for appellants.

Mark H. Gallant, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before MIKVA and EDWARDS, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON. MacKINNON, Senior Circuit Judge:

The Public Citizen Health Research Group and its director, Sidney Wolfe, filed a request under the Freedom of Information Act (FOIA or the Act), 5 U.S.C. § 552 (1976 & Supp. V 1981), to compel release of a report prepared by President-elect Reagan's transition team regarding the Department of Health and Human Services (the Department). The Department denied the request, stating that the report is not an "agency record" within the meaning of the Act. The requestors then filed an action in federal district court to compel disclosure. ¹ The district court granted summary judgment in favor of the Department, having concluded that the report of the President-elect's transition team is not an "agency record" within the meaning of the FOIA. Wolfe v. Department of Health and Human Services, 539 F.Supp. 276 (D.D.C.1982). We agree with the district court and, therefore, affirm the grant of summary judgment.

I.

By letter in July 1981, plaintiffs requested the Department of Health and Human Services to provide access "to all reports compiled by the Department of Health and Human Services' transition team." The Department responded that

[m]aterials developed to aid in the transition were compiled for the Office of the President-Elect prior to the Inauguration and did not become a part of Departmental files. Thus, there are no records in our possession which would respond to your request.

Record (R.) 13.

This decision was appealed to the Assistant Secretary of Management and Budget for the Department, who denied the appeal and reiterated that the documents requested were not "agency records" because they were "neither made, received, nor preserved by the Department" and were not in "the possession or control of the Department." R. 13. The plaintiffs then filed this action in the United States District Court for the District of Columbia.

The facts regarding the documents are uncontroverted. ² The documents were compiled by President-elect Reagan's transition team and consist of a one-volume final report, two volumes of appendices, and eight volumes of correspondence. The transition team completed its work on December 20, 1980, and distributed copies of the report to the President-elect's advisor, Edwin Meese, the central transition team, members of the Department transition team, and Secretary-designate (then Senator) Richard Schweiker. Secretary-designate Schweiker gave his copy to an aide, David Newhall, who made a copy for himself and retained both his and the Secretary-designate's copy. Following Secretary Schweiker's confirmation, Newhall was appointed as the Secretary's Chief-of-Staff. When he moved into the Department's offices, Newhall brought both copies of the report with him and placed them in a locked, glass bookcase in his office marked "personal." Neither Newhall, Schweiker, nor any other Department employee ever used or consulted these documents, except in preparation for this litigation.

Applying Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), to these facts, the district court concluded that the Department of Health and Human Services never possessed or exercised control over the transition team reports. The court stated that

in this case although copies of the report are physically located at HHS the report was not generated by HHS, is not within the control of HHS, and indeed never entered the Department's files or was ever used by the Department for any purpose.

Wolfe, supra, 539 F.Supp. at 277.

Therefore, the court held that the transition team reports were not "agency records" within the meaning of the FOIA.

II.

"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, supra, 445 U.S. at 150, 100 S.Ct. at 968. A threshold inquiry in any FOIA case is whether the documents requested are in fact "agency records." ³ Although the Act does not contain a definition of the term, the Supreme Court has established that a document qualifies as an "agency record" if it was either "created" or "obtained" by an agency subject to the FOIA. Forsham v. Harris, 445 U.S. 169, 182, 100 S.Ct. 978, 985, 63 L.Ed.2d 293 (1980). The Department of Health and Human Services did not "create" these documents. ⁴ Therefore, the transition team reports can be "agency records" only if the Department has "obtained" them.

While the Supreme Court has expressly declined "to categorize what agency conduct is necessary to support a finding that [the agency] has 'obtained' documents," ⁵ at the least, the agency cannot have "obtained" documents until it has possession or control over them. ⁶ In Forsham, the Court emphasized the "possessory" concept implicit in the Act, noting that documents which have not passed from "private to agency control" are not "agency records" within the meaning of the Act. Id. at 185, 100 S.Ct. at 986. Possession of the documents, sufficient for FOIA purposes, embodies more than the mere physical location of the documents; the agency must actually have custody of the documents. There must be some "nexus" between the agency and the documents other than the mere incidence of location. Id. at 178, 100 S.Ct. at 983.

Establishing who "possesses" documents is a factual determination. To support their assertion that these materials belong to the Department, the requestors rely upon the mere fact that two sets of the transition team documents are within the four walls of the agency. Such a showing is insufficient. As the Supreme Court stated in Kissinger:

We simply decline to hold that the physical location of the notes of telephone conversations renders them "agency records." The papers were not in control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose. If mere physical location of papers and material could confer status as an "agency record" Kissinger's personal books, speeches, and all other memorabilia stored in his office would have been agency records subject to disclosure under the FOIA.

445 U.S. at 157, 100 S.Ct. at 972 (emphasis added).

Newhall's possession of the transition team reports is analogous to Kissinger's possession of his telephone notes. In both instances the documents were generated by an entity outside the reach of the FOIA; the individual's personal possession of the documents pre-dated his affiliation with the agency; and the individual brought the documents within the four walls of the agency, but did not integrate the documents with agency files or records. In neither case was there any real nexus between the documents and the agency other than their physical location. Neither set of documents lost its private character simply upon arrival within the agency building.

The uncontroverted facts reveal that the transition team documents never entered the Department's files and/or resources. In a sworn affidavit, Mr. Casciotti, the Deputy Executive Secretary for Human Services, Department of Health and Human Services, attests that he conducted a search of the Department's records systems, including computerized records, and found no indication that the documents had ever been within the files of the Department. Casciotti Affidavit p 5 (R. 7). The Department of Health and Human Services was never in "possession" of these transition team documents.

Appellants attempt to distinguish Kissinger v. Reporters Committee and urge reliance upon Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), to establish agency possession. In Ryan, this court found that the Attorney General's possession of certain documents authored by United States Senators was coextensive with possession by the Justice Department for the purposes of the FOIA. Appellants assert that unlike the telephone notes in Kissinger, the documents in Ryan actually "related to" the business of the agency in which they were housed. It was because the documents in the Attorney General's possession were essential to the business of the Justice Department, appellants assert, that they became "agency records." Applying their Ryan analysis to the instant situation, appellants argue that because the transition team reports "relate to" the Department of Health and Human Services, possession of these documents by an agency official automatically confers agency possession. We do not read Ryan to stand for the proposition that an agency official's actual, physical possession of documents automatically renders them "agency" documents for purposes of the FOIA.

In Ryan, the documents were requested by and delivered to the Attorney General during his tenure and were intended to be used by the Attorney General to execute Justice Department business. The Ryan court summarily stated that the documents were in the "possession of the Justice Department" because the agency's possession and use of the documents was not controverted. 617 F.2d at 786. In fact the issue in Ryan was not "possession." Rather, the...