FBI) and (F) (communications sent from the FBI to the Select Committee) were Congressional records. Several status calls were held during the next few weeks centering on the timing of the processing and release of the requested documents by the Department of Justice.

On January 22, 1982, the General Counsel to the Clerk of the House filed a motion to intervene as a defendant in the action on behalf of the Clerk. In a memorandum filed with the motion, the General Counsel noted that since the Justice Department was now contending that only two of the six categories of requested documents were Congressional records, "the Clerk believes it is necessary to intervene . . . for the limited purpose of asserting the privilege against compelled disclosure of non-public congressional records.” [Clerk's Memorandum of Points and Authorities in Support of Motion to Intervene, January 22, 1982, at 2–3] The memorandum argued that the Clerk should be permitted to intervene as of right under Rule 24(a)2) of the Federal Rules of Civil Procedure.2 Alternatively, the memorandum maintained that permissive intervention should be granted.

Turning first to the question of "timeliness," the General Counsel asserted that:

the Clerk was not in a position to intervene earlier, since
he was not aware until December 8, 1981 that the Depart-
ment of Justice would defend only categories (E) and (F) as
congressional records. Indeed, until the date on which the
Department officially made known its position, it could be
argued that the Clerk's interests were adequately repre-
sented by existing parties"-a bar to invocation of Rule

24(a)(2)... [Id. at 4] The Clerk's interest in the action was also "substantial,” according to the General Counsel, because the plaintiff was seeking records generated by a Congressional committee during the course of a legislative investigation, and the Clerk was the legal custodian of House records. Further, the memorandum continued:

The interest of the Clerk is "substantial" in another regard: he is uniquely capable, among the existing parties, of addressing issues which the court must consider in deciding whether these records are exempt from disclosure under FOIA, inter alia, applicability of the "constitutional protection of the legislative process under the Speech or Debate Clause, art. I, § 6, cl. 1.” Holy Spirit Ass'n. v. CIA,

[636 F. 2d 838, 843] [Id. at 5] Finally, the General Counsel contended, the Clerk's interests were not adequately represented by the present parties and the disposition of the action in his absence would impair or impede his ability to protect those interests. The memorandum reasoned:

2 Rule 24(a (2) states:

Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

In practical terms, only a legislative branch officer can fully protect his interests in this action. Recently, this district has recognized that a legislative branch employee may intervene in an action to prohibit a litigant from indirectly inquiring via deposition of third parties, into their performance of legislative acts. In William P. Tavoulareas, et al. v. The Washington Post Co., et al., Civ. Action No. 80-3032 and William P. Tavoulareas v. Philip Piro, Action No. 80-2387 (issued Sept. 10, 1981) (Gasch, J.), the Court granted a motion to intervene by congressional employees for the purpose of raising their speech or debate clause rights when the defamation plaintiff sought to depose a witness and source for the committee for which they were employed. As Judge Gasch held "The inescapable conclusion to be drawn ... is that the speech or debate clause prohibits the use of judicial process to inquire of a third party about the legislative acts of a legislator or his aides." Memorandum at 21. (Exhibit 2) See also In Re Grand Jury

Investigation, 587 F. 2d 589 (3d Cir. 1978). (Id. at 6-7] On January 29, 1982, the plaintiff filed a response to the Clerk's motion to intervene in the case, arguing that it should be denied because “the Clerk does not intend to confine his intervention to the 'agency records' issue but wishes to raise entirely new 'constitutional issues.” [Plaintiff's Response to Motion To Intervene By Clerk . . ., January 29, 1982, at 2] Pointing out that in his proposed answer the Clerk had raised as defenses a claim that release of the documents at issue was barred by the Speech or Debate Clause 3 and a claim that release was also prohibited under the Publication Clause,4 the plaintiff contended that the Clerk was seeking "to go beyond the scope of issues available to intervenors." [Id. at 3] In his view, an intervenor could only be admitted to a proceeding with respect to pending issues, and could not enlarge the issues or change the nature of the action.

Furthermore, the plaintiff maintained, the Clerk's proposed intervention was not "timely" because he had waited nearly eight months before filing his motion despite the fact that he "knew all along that his constitutional claims . . . had not been raised.” (Id. at 4] Finally, the plaintiff asserted, allowing the Clerk to intervene at that point would severely prejudice him because it would further delay the expected release of the requested documents.

On February 2, 1982, the defendant FBI and Department of Justice filed a response to the Clerk's motion to intervene, stating that they had no objection to his permissive intervention although they believed he had no right to intervene under Rule 24(a).

On February 4, 1982, the Clerk's motion was argued and taken under advisement. On February 8, in a brief memorandum order, Judge Green granted the motion to intervene, finding it proper as a matter of right. She held that:


3 The Speech or Debate Clause of the U.S. Constitution provides that “for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place." (art. I, § 6, cl. 1]

4 The Publication Clause of the U.S. Constitution provides that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require secrecy ...” (art. I, § 5, cl. 3]

[T]he Clerk has applied timely, after the defendants al-
tered its position with respect to raising legislative privi-
leges; disposition of this action in the Clerk's absence may
impair or impede his ability to protect the interests of the
House of Representatives; and the Clerk's interests are not
adequately represented by the present parties. [Memoran-

dum Order, February 8, 1982, at 1] Also on February 8, the Clerk formally filed his answer to the complaint, asserting as defenses that: (1) the action was barred by the Speech or Debate Clause; (2) the action was barred by the Publication Clause; and (3) the complaint failed to state a claim upon which relief could be granted.

On February 19, 1982, the plaintiff filed his initial interrogatories and requests for admissions on the Clerk.

On March 19, 1982, Judge Green issued a memorandum opinion and order granting a motion of the plaintiff to waive all search fees and copying costs. Although the Executive branch defendants filed a notice of appeal of this order to the U.S. Court of Appeals for the District of Columbia Circuit on May 10, 1982 (No. 82-1529), they subsequently moved to dismiss the appeal. On August 3, 1982, pursuant to the defendants' request, the circuit court dismissed the appeal.

On April 12, 1982, the Clerk filed a motion for summary judgment and a supporting memorandum. At the outset, the memorandum characterized the action as one which "while nominally directed against executive agencies and FOIA seeks documents generated by a duly authorized congressional committee and responses prepared by those agencies at the request of the committee." ÎMemorandum of Points and Authorities in Support of the Clerk's Motion for Summary Judgment, April 12, 1982, at 2] In sum, the Clerk argued that the documents sought by the plaintiff were not "agency records” required to be produced under the FOIA, "in that the circumstances surrounding their creation and the conditions placed upon their disclosure indicate[d] congressional intent to retain control of them.” [Id. at 6] Moreover, said the Clerk, even if the materials were agency records, they represented an investigation by the Congress, were thus part of the deliberative and communicative process," and were therefore protected from judicially compelled disclosure by the Speech or Debate Clause. “Questioning" about the materials was thus barred, the Clerk contended, even if the entity being questioned was a third party, in this case, the Department of Justice.

Focusing first on the "agency records" issue, the Clerk put particular emphasis on a March 26, 1979 letter from Select Committee Chairman Louis Stokes to the Attorney General asserting control over records “generated by your Department in response to specific requests or concerns of the Select Committee,” as well as “materials originating from the Select Committee" in the custody of the Department. (The Clerk stressed as well that he had reaffirmed Rep. Stokes' assertion of control in a letter to the Director of the FBI on March 2, 1981.)

Addressing the Congressionally generated documents in plaintiff's categories (E) and (F) (see footnote 1, supra), the Clerk reasoned that they were clearly Congressional records under Goland v. Central Intelligence Agency, 607 F. 2d 338 (D.C. Cir. 1978), vacated in part on other grounds, 607 F. 2d 367 (1979), cert. denied, 445 U.S. 927 (1980):

The documents in categories (E) and (F) surely meet the two pronged test enunciated in Goland. Their creation, whether by the Committee or by the Department, was attended by numerous safeguards to avoid their disclosure outside the Committee or the Department. See Exhibit 3 and the Non-disclosure Agreement signed by all Committee staff, a sample of which is attached as Exhibit 6. Further, the Stokes letter evidences the necessary indicia of congressional intent to maintain control over these documents in that it specifically prohibits release of any of the documents without the express written consent of the House of Representatives. Thus, these documents, even though located within the confines of the Department's facility, have not lost their character as congressional records, and are exempt from disclosure under FOIA. (Id. at

8] The Clerk noted that the present case was particularly compelling because the assertion of Congressional control predated the plaintiff's request for documents from the agencies involved.

With respect to the documents in plaintiff's categories (A) through (D), the Clerk argued that Congress, through the Stokes letter, had even asserted control over agency generated records involved in the Committee investigation. The court, the Clerk continued, should support this assertion of control, because the function of the documents was Congressional in nature even if control of the documents was not in Congressional hands. This was so, the Clerk said, because the documents were created in response to a Congressional inquiry and "were primarily intended to serve the oversight and legislative needs of the HSCA and did not relate to regular course of law enforcement business at the agency." [Id. at 13] Additionally, the Clerk maintained, Congress, like a grand jury, had an interest in keeping certain of its deliberations secret to protect the rights of individuals:

Documents created or generated by the agency to assist
the HSCA in its investigation served the essential over-
sight functions of the Congress, not the mission of the
F.B.I. The documents reflect the scope and nature of
HSCA investigative processes and disclosure under FOIA
would unduly intrude into the Committee's deliberations
and communications. Like the statutory prohibition into
matters occurring before the Grand Jury under Rule 6(e)
of the Federal Rules of Criminal Procedure, the House has
often invoked its constitutional authority to keep its pro-
ceedings secret, Goland v. C.I.A., supra at 346 and n. 36;
Murray v. Morton, 505 F. Supp. 144, 146 n. 1 (D.D.C. 1981)
rev'd on other grounds sub. nom. Murray v. Buchanan, No.
81-1301 (D.C. Cir. issued March 9, 1982) to foster the same

interests protected by grand jury secrecy. United States v.
Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974).


Given the Committee's concern to avoid undue intrusion into the rights of individuals with material evidence on the subject matter before it, as well as associates of such persons, and related concerns, H.R. Rep. No. 98-1838 supra at 11-15, it is appropriate to afford congressional deliberations at least that protection given grand jury matters by

Rule 6(e). (Id. at 12] Turning to his Speech or Debate Clause argument, the Clerk emphasized the importance of constitutionally derived congressional investigative authority and the significance of information gathering in exercise of that function.” [Id. at 15] He explained:

Plaintiff, under the guise of the FOIA, has framed his requests by direct reference to the exercise by Congress of its investigative and oversight responsibilities and seeks thereby to intrude into the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation ... or other matters which the Constitution places within the jurisdiction of either HouseGravel v. United States, 408 U.S. 606, 625 (1972) (emphasis added). Because oversight of government departments is a matter placed within the jurisdiction of Congress by the Constitution, McGrain v. Daugherty, [273 U.S. 173 (1927), Plaintiff's request contravenes the Article I, section 6 prohibition against "questioning” of the legislative process anywhere outside Congress.

[Id. at 15-16 (emphasis in original)] The Clerk added that the Speech or Debate Clause protected the deliberative process from questioning even with respect to third parties, citing Tavoulareas v. The Washington Post, 93 F.R.D. 11, 23-24 (D.D.C. 1981). (See page 434 of this report for a discussion of that case.)

Finally, the Clerk argued that the Publication Clause (see footnote 4, supra) also militated against disclosure of the requested documents:

Plaintiff's requests for documents describe with great particularity specific areas of congressional concern and the focus of HSCA's investigation. Any disclosure may contravene what was expected or contemplated by Congress in making the inquiries of the agencies which it did make. As was stated above, inquiries to the Department in the investigative or legislative context and responses thereto are indisputably part of congressional "proceedings,Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) (upholding investigatory powers of congressional committees); Watkins v. United States, 354 U.S. 178 (1957) (same); McGrain v. Daugherty, supra, (same) and under the authority of the Congress to determine what part of its pro

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