to assert that many of the records dealt with national security information or information concerning intelligence sources and methods, the CIA argued that the court had a special obligation to hear the claims.

Focusing on the specific exemptions, the CIA asserted that the 41 documents could justifiably be withheld under one or more of the following exemptions: Exemption 1 (as classified information); Exemption 3 (as information, such as intelligence sources and methods, protected from disclosure by statute); Exemption 5 (as information revealing the deliberative process of Congress); and Exemption 6 (as information involving a clearly unwarranted invasion of personal privacy). With respect to its claims under Exemption 1, the CIA submitted a detailed in camera affidavit to demonstrate that the material was properly classified.

Because the CIA believed that the various exemptions permitted the withholding of the documents at issue, the agency stated that it was not necessary for the court to consider the Clerk's Speech or Debate Clause argument or whether, as a non-party, he had standing to raise it.

On December 15, 1982, the Church filed a cross-motion for summary judgment and an opposition to the CIA's motion for summary judgment. In an accompanying memorandum, the Church argued that: (1) the 30 Congressionally-generated documents were not subject to any further claim of exemption; (2) Exemption 5 did not justify withholding the 11 CIA-generated documents; and (3) the Speech or Debate Clause was irrelevant to the proceedings.

With respect to the 30 Congressionally-generated documents, the Church claimed that the CIA's attempt to assert new grounds for withholding “violate[d] the terms of the remand and is prohibited by considerations of fairness to plaintiff and of judicial economy. [Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, December 15, 1982, at 3] In the Church's view the CIA's tactics disregarded the clear language of the appeals court which limited consideration of exemption claims on remand to the CIA-generated documents. Further, the Church insisted, none of the cases relied on by the CIA supported its contention that it could assert new defenses on remand; in fact, said the Church, the law was clear that delay by the Government in raising defenses would not be countenanced in FOIA cases. Moreover, the Church argued, allowing the new defenses would be particularly unfair to the plaintiff, which had requested the documents four and one-half years earlier, and would be a waste of the court's time, since it would “require the courts of this jurisdiction to redecide a case for as many times as an agency might think of arguable exemptions." [Id. at 7]

Turning to the 11 CIA-generated documents, the Church claimed that Exemption 5 did not justify their being withheld. (As to the CIA's claims under Exemptions 1, 3, and 6, the Church asked only that "the court review the documents with its usual thoroughness and assure itself that the documents support the exemptions.” (Id. at 8] According to the Church, the CIA had not met its burden of proving that the records in question fell within the deliberative process exemption. The agency had failed to meet either part of the test of a proper Exemption 5 defense, the Church argued, in that it had not established: (1) that the information withheld was predecisional in nature; and (2) that it was deliberative, as opposed to factual, in character.

21-618 0-8331

Finally, addressing the Speech or Debate Clause issue, the Church argued that the Clerk was "raising an abstract, hypothetical question of law and .. in any event, the privilege does not apply." [Id. at 10] This was so, said the Church, because the Clerk himself could not claim the protection of the Clause and "[n]o specific member has asserted the privilege or has even been identified as interested in this litigation.” (Id. at 11] The Church concluded:

Moreover, even if a member of Congress were here to
assert the privilege, it would be to no avail. The inescap-
able fact of this litigation is that Congress turned over
both sets of documents to the agency. (The CIA-originated
documents were given to Congress by the CIA and then re-
turned; the congressionally-generated documents went di-
rectly to the CIA). The Clause has been construed broadly
to effectuate its purposes and certainly encompasses legis-
lative activity well beyond floor debates. But it has a limit:
the limit is that, to come within the protection of the
Clause, the legislator's activities "must be an integral part
of the deliberative and communicative processes by which
Members participate in committee and House proceed-
ings." Gravel v. United States, 408 U.S. 606, 625 (1972).

The law is clear that the act of disseminating congres-
sional documents outside of congress, including dissemina-
tion to federal agencies, is unprotected. E.g., Gravel v.
United States, supra, 408 U.S. at 625; Doe v. McMillan, 412
U.S. 306, 313 (1973); McSurely v. McClellan, 172 U.S. App.
D.C. 364; 521 F.2d 1024, 1036 (1975), affd en banc, by an
equally divided court, 553 F.2d 1277 (1976), cert. dismissed,
438 U.S. 189 (1978); Tavoulareas v. Piro, 527 F.Supp. 676
(D.D.C. Nov. 13, 1981); Tavoulareas v. Piro, 93 F.R.D. 11
(D.D.C. Sept. 10, 1981). Thus, the Speech or Debate Clause
has no relevance to the facts of this case, and this is par-
ticularly true in light of the clear holding of Unification I
that the documents had departed the congressional

domain. (Id. at 12 (footnote omitted)] On December 22, 1982, the CIA filed a reply memorandum in support of its motion for summary judgment and in opposition to the Church's cross-motion. The memorandum noted that only 39 documents remained in dispute since the CIA had determined that two of the Congressionally-generated documents could be released.

In general, the reply memorandum reiterated arguments that the agency had made previously. First, the CIA asserted, the Church was wrong in contending that the "terms of the remand" would be violated if the agency was permitted to claim that the FOIA exemption provisions applied to the Congressionally-generated records. The appeals court did not state in its opinion that the agency was precluded on remand from raising the exemption claims, the CIA insisted. Moreover, given the agency's determination that substantial portions of the records had to be withheld to protect the nation's security, intelligence sources and methods, and


the personal privacy of individuals, the CIA argued that the material was simply “to sensitive” to be released without due consideration of the exemptions. Second, the CIA maintained, Exemption 5 did protect the documents to the extent that the communications between the agency and Congress simply reflected "candid exchanges of information." (Defendants' Reply Memorandum December 22, 1982, at 5, citing Demetracopoulos v. CIA, No. 811625 (D.D.C. Oct. 8, 1982), slip op. at 11]

The CIA also argued that the Clerk's Speech or Debate Clause argument was without merit because the Clause was not a "withholding statute" and was not intended to prohibit Executive branch agencies from releasing records that they received from Congress.

On January 4, 1983, the Church filed a short reply memorandum which noted that: (1) new claims could be asserted on remand only in extraordinary circumstances, and the CIA had not offered even the slightest explanation of why the arguments it now proferred for withholding the Congressionally-generated documents could not have been raised much earlier in the litigation; and (2) Exemption 5 required proof that each document withheld was both pre-decisional and advisory.

On January 12, 1983, U.S. District Judge Gerhard A. Gesell issued a memorandum opinion and order granting the Church's motion for summary judgment insofar as it related to portions of 17 documents claimed to be privileged only under Exemption 5. In all other respects the Church's motion was denied and the CIA's motion for summary judgment was granted. (Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 558 F. Supp. 41 (D.D.C. 1983)

At the outset, Judge Gesell rejected the Church's argument that the court could not consider any FOIA exemptions not originally claimed by the CIA with respect to the Congressionally-generated documents. “While the remand is unclear as to whether new exemption issues could be raised, the interests of national security demand it and the Agency should not be penalized by the appellate rejection of a claim in this uncertain FOIA area,” the judge ruled. (558 F. Supp. at 42-43 (citations omitted)] Judge Gesell explained further:

The communications at issue were almost entirely based on classified material. Since the communications were with committees themselves highly conscious of security considerations the Agency mistakenly considered its contacts and deliberations with the committees were fully immune from disclosure. Accordingly, the communications themselves were not originally classified by the CIA and, of course, congressional letters based on classified data could not be classified by Congress. Invoking its statutory authority under the National Security Act of 1947, 50 U.S.C. $ 403(d)(3), and Executive Order No. 12356, 47 Fed. Reg. 14874 (1982), the Agency has not classified much of the material withheld. It has done this in good faith to protect methods, sources and the release of information

which when read even by one as inexperienced in such

matters as the Court demand withholding. (Id. at 43] Based on his in camera review, and for the reasons stated in the in camera affidavit, Judge Gesell therefore sustained all the CIA's claims under Exemptions 1, 3, and 6.

Judge Gesell next turned to the 19 remaining documents which had been withheld in whole or in part soley on the basis of Exemption 5. He concluded that two of the documents had been properly withheld; he ruled that the other 17 did not come within Exemption 5. (Of the 17, 12 were communications from House committees to the CIA requesting information for inquiries or advice on the content of proposed reports, and five were purely internal Congressional working papers which somehow reached the CIA files.) Those 17 documents, said Judge Gesell, "reflect the deliberations of Congress, not the Agency, and Congress is not an agency under FOIA." (Id. at 44]

Finally, Judge Gesell considered the applicability of the Speech or Debate Clause to the 17 documents not protected by any of the FOIA exemptions. Although he found that release of the documents "would appear to constitute a threat to legislative independence and would create a precedent that would impair the 'deliberative and communicative' function of the legislative process” (Id.), he still held that the Clause did not bar the documents' release:

No member of Congress or appropriate representative has come forward as a party to raise the issue. The Clerk appears merely as amicus and his representations are general, posing no concrete case or controversy. If the House of Representatives desires to protect this type of material it must act affirmatively, either by resolution in particular cases such as this, by decisive timely action asserting cus

tody, or by appropriate amendment to FOIA. (Id.] Status—The case is pending in the U.S. District Court for the District of Columbia. As of March 1, 1983, the time for appeal of Judge Gesell's decision had not yet expired and the disputed documents had not been released.

The complete text of the December 23, 1980 opinion of the circuit court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the January 12, 1983 memorandum of the district court is printed in “Decisions” section of this report at page 643. Allen v. Federal Bureau of Investigation

Civil Action No. 81-1206 (D.D.C.) On May 22, 1981, Mark Allen, a private citizen researching the work of the House Select Committee on Assassinations ("Committee"), filed suit under the Freedom of Information Act (5 U.S.C. 88 552 et seq.) against the Federal Bureau of Investigation (“FBI”), FBI Director William H. Webster, the Department of Justice, and U.S. Attorney General William French Smith. The plaintiff sought copies of "all correspondence or any records of any communication” between the Committee and the FBI “relating to the Select

Committee's investigation into the assassination of President John F. Kennedy.” (Complaint for Injunctive Relief, May 22, 1981, at 2] Mr. Allen had requested access to these documents by letter to the FBI dated December 12, 1980 but his request had been denied and no determination had been made on his appeal of the denial to the Justice Department. In his complaint, the plaintiff also sought copies of "all records relating to the investigation of the ... Committee into the murder of President John F. Kennedy not covered by my FOIA request of December 12, 1980." [Id. at 3] Mr. Allen had also previously requested these materials in a letter to the FBI dated April 6, 1981; this request was denied as well.

On June 26, 1981, the defendants filed their answer, asserting that: (1) the complaint failed to state a claim on which relief could be granted; (2) the court lacked jurisdiction over the subject matter of the complaint in that no agency record had been improperly withheld within the meaning of 5 U.S.C. $ 552; and (3) the named defendants-William French Smith, William H. Webster, and the FBI-were not proper party defendants to the action.

On July 20, 1981, the plaintiff filed a motion asking the court to permit him to make the Clerk of the House, Edmund L. Henshaw, a party defendant in the suit. In a memorandum accompanying the motion, the plaintiff noted that on April 17, 1981 the Clerk had written to him asserting that the "records sought by plaintiff are Congressional records and thus not subject to the Freedom of Information Act.” [Memorandum of Points and Authorities, July 20, 1981, at 1] According to the memorandum, this letter indicated that the Clerk “clearly claims an interest in the subject of this litigation," and unless he was joined as a party defendant “his ability to protect the Congressional interest may be impaired or impeded. (Id.]

At a status call held before Federal District Court Judge June L. Green on July 30, 1981, the counsel for the Clerk of the House indicated that the Clerk preferred not to be joined as a party defendant. Despite the plaintiff's objections, Judge Green stated from the bench that the court would not make the Clerk a party in the case, because, in her view, she did not have the authority to do so. Judge Green did agree, however, to have the Clerk file an amicus brief.

On September 16, 1981, the plaintiff served interrogatories, requests for admissions, and requests for production of documents on the Department of Justice. In the initial set of interrogatories, the plaintiff, inter alia, listed six categories of records and asked the defendant Executive branch agencies to identify those categories they deemed to be “Congressional records.” 1 Responses to the plaintiff's discovery requests were completed on December 7, 1981, when the defendants filed their Further Answers to Plaintiff's First Set of Interrogatories, asserting that only documents in categories (E) (communications sent from the Select Committee to the

1 The categories identified by the plaintiff were:

A. FBI records sent to the House Select Committee;
B. FBI records made available to the Select Committee for perusal;
C. Internal FBI memoranda pertaining to the Select Committee;
D. FBI communications with other agencies pertaining to the Select Committee;
E. Communications sent from the Select Committee to the FBI; and
F. Communications sent from the FBI to the Select Committee.

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