ceedings it deems shall be publicly available, U.S. Const.,
art. I, § 5, cl. 3, the Congress-not agencies through appli-
cation of FOIA-should make that determination. Disclo-
sure of these matters under FOIA would force the Con-
gress "to surrender its constitutional prerogative of main-
taining secrecy, or to suffer an impairment of its oversight

role." Goland v. CIA, supra at 346. (Id. at 19) On June 30, 1982, the plaintiff filed a motion to compel the defendant FBI to answer certain interrogatories. On July 2, 1982, the plaintiff also filed a motion to compel the FBI to produce certain documents. In supporting memoranda, the plaintiff took particular issue with the asserted (by the FBI) applicability of the Speech or Debate Clause to the answers and documents sought. On July 14, 1982, the FBI opposed both of the plaintiff's motions.

On July 21, 1982, Judge Green issued a memorandum order denying the plaintiff's motions to compel. In general, Judge Green ruled that: (1) certain issues would be best resolved through the pending motion for summary judgment rather than through the motions to compel; (2) certain matters represented “predecisional thought processes” of the FBI, protected from disclosure; and (3) certain of the requested materials were not necessary or relevant to the issues in the case.

On August 27, 1982, the Executive branch defendants filed a motion for summary judgment and a supporting memorandum which argued that the records at issue in the case were "agency records” nondisclosable under Exemption 5 of the FOIA (5 U.S.C. $ 552(b)(5)).5 The Executive branch defendants disagreed with the Clerk's contentions that the documents were nondisclosable because they were Congressional records and/or because they were protected by the Speech or Debate Clause. The Executive branch defendants therefore opposed the Clerk's motion for summary judgment, and asked the court to grant their motion on the basis of Exemption 5.

In their memorandum, the FBI and the Department of Justice asserted first that the documents sought in the case were "agency records,” not “Congressional records.” In that regard, they rejected the Clerk's reliance on the Goland case, noting that: (1) most of the documents had been in the FBI files for many years (some for as long as 20 years or more) and thus predated the Committee's existence and could not be considered “Congressionally generated”; (2) most of the documents never left the FBI's possession during the Committee's investigation; (3) there was no agreement with the Department or the FBI that any of the records would become, or, in the case of Committee requests, remain, Congressional records; and (4) only after almost all the information had been compiled and generated by the FBI were the requests received from Rep. Stokes and the Clerk that the material not be released without Congressional concurrence. In sum, said the Executive branch defendants, “[w]hile these records were used in connection with a sensitive congressional investigation, there is little or no probative evidence contemporaneous with their compilation or generation that the Committee) intended to maintain continued control over them.” [Memorandum of Points and Authorities in Support of Executive Department Defendants' Motion for Summary Judgment . . ., August 27, 1982, at 7]

5 Exemption 5 protects disclosure of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

The Executive branch defendants also disagreed with the Clerk's suggestion that a functional analysis required a finding that the documents were Congressional records:

Here, the Clerk argues that a functional analysis requires a holding that the responsive records in the FBI's possession are congressional records because they were assembled in connection with the HSCA investigation. However, these documents can just as easily be described as reflecting FBI functions. Most of the originals of these documents were created and remain in the FBI's files for law enforcement purposes. Phillips Aff. (5). That function does not change simply because the FBI made copies of them. See FBI v. Abrahamson, 50 U.S.L.W. 4530 (May 25, 1982). The FBI's memoranda are for its own internal communication. The HSCA requests for information function now as records of what was sought from the FBI. Moreover, as the functional test is less restrictive than the Goland control test, RCA, supra, 524 F. Supp. at 583, that test should not be used here to limit disclosure of these documents in the FBI's possession which it created or received without con

gressional restriction. See id. at 583-84. (Id. at 9-10) The Executive branch defendants concluded that without an agreement having been reached between them and the Committee before the information was compiled and generated that Congress would exercise “exclusive or concurrent control” over that information, and without appropriate steps having been taken to ensure that control, the “records must of necessity be considered agency records." (Id. at 10]

Turning to their Exemption 5 argument, the Executive branch defendants asserted that the plaintiff was attempting through his FOIA requests to obtain from the FBI "very sensitive" information which he could not obtain from Congress. Those records, the memorandum maintained, disclosed "the deliberative process of the Select Committee and its efforts to obtain the cooperation of and its interaction with the FBI during this sensitive investigation. These records are thus protected by Exemption_5 . . . and are beyond the scope of the FOIA.(Id. at 10-11] The Executive branch defendants pointed out that the basis of Exemption 5 was to protect the deliberative process and to foster the free and uninhibited exchange of ideas, not only within or among agencies, but between agencies and non-agencies. Application of Exemption 5 was particularly compelling in the present case, the defendants added, because the consultative process involved not merely an agency and a private party, but the FBI and Congress:

It is for exactly this reason that the materials prepared by the FBI in consultation with, and on behalf of, Congress would undoubtedly be unavailable "by law to a party other

than an agency in litigation with the agency." Apart from
the interest in preserving the privacy of the deliberative
process, this information would be unavailable because its
production would impede that constitutionally mandated
process of inter-branch communication, essential to the
performance of congressional investigation and oversight.
As the Supreme Court noted in United States v. Nixon, 418
U.S. 683 (1974) (referring to the executive privilege),
"[freedom of communication vital to fulfillment of the
aims of wholesome relationships is obtained only by re-
moving the spector of compelled disclosure
[G]overnment ... needs open but protected channels for
the kind of plain talk that is essential to the quality of its
functioning.” Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,
40 F.R.D. 318, 325 (D.C. Cir. 1966)." Id. at 708 n. 17 (other

citations omitted). [Id. at 12-13] Finally, addressing the Speech or Debate Clause issue, the Executive branch defendants argued that the Clause was not applicable to the fact situation presented by the case:

Here, the judiciary is not being asked to interfere in any way with a congressional matter or to order the production of information for possible use against a legislator or the legislative process. The HSCA has never had most of these documents, and disseminated the rest to the FBI. Rather, the Court is being asked to order the FBI to disclose information. No precedent exists for applying the Speech or Debate Clause to bar the production of documents in the possession of the Executive. Indeed, to do so would blur the line between these two branches of government which the Speech or Debate Clause is intended to help protect. United States v. People's Temple of the Disci

ples of Christ, supra, 515 F. Supp. at 248-49. [Id. at 16-17] On September 3, 1982, the plaintiff filed an opposition to the motion of the Clerk of the House for summary judgment. Initially, the plaintiff argued-as had the Executive branch defendantsthat all the records at issue were “agency records,including those Congressionally-generated documents in categories (E) and (F). Although the plaintiff agreed with the Clerk that the Goland case controlled the characterization of the documents in those two categories, he contended that the evidence did not support the conclusion that they were Congressional records under the Goland twopronged test. Neither the circumstances surrounding the documents' creation nor the conditions surrounding the transfer of the documents to the Department of Justice indicated an intent by the Committee to restrict public dissemination or to maintain control of the materials, the plaintiff insisted. In fact, he asserted, the "safeguards" to avoid disclosure cited by the Clerk compelled the opposite conclusion, since the Justice Department was given broad authority over the documents. Further, the plaintiff maintained, the non-disclosure agreement relied upon by the Clerk placed no restrictions on the Department, the FBI or any other agency providing information to the Committee, and was nothing more than

"a device to enable the HSCA to control leaks by members of its staff.” [Plaintiffs' Opposition To Motion of Intervenor For Summary Judgment, September 3, 1982, 4)

With respect to the two letters relied on by the Clerk as demonstrating the Committee's assertion of control over the records—the March 26, 1976 letter from Chairman Stokes to the Attorney General and the March 2, 1981 letter from the Clerk to the Director of the FBI-the plaintiff argued:

[T]he Stokes letter arrived long after the date of the generation of most of the documents at issue in this litigation. Phillips Affidavit, 1 (8). Indeed, it arrived nearly three months after the HSCA ceased to exist. Stokes, as exChairman of a defunct committee, had no power to assert control over HSCA records. The letter of the Clerk of the House to the Director of the FBI was even more tardy, since it was not sent until March 2, 1981, more than a year after the HSCA ceased to exist and nearly four months after Allen's first FOIA request. Under these circumstances these letters are, to say the least, "insufficient evidence of Congress' intent to retain control over these documents.Holy Spirit, supra, 636 F.2d at 842. (Id. at 5 (footnote omitted)] Turning to the documents in categories (A) through (D), the plaintiff claimed they were "very clearly agency records” under the holdings of both the Goland and Holy Spirit cases. The plaintiff dismissed out of hand the Clerk's argument that the documents were functionally Congressional records since “[m]ost of the originals of these documents were created and remain in the FBI's files for law enforcement purposes.” [Id. at 6] Indeed, said the plaintiff, “most of the records involved in this litigation never even left the FBI's possession during the HSCA's investigation.(Id. at 7 (footnote omitted))

Focusing next on the Clerk's Speech or Debate Clause argument, the plaintiff asserted first that the Clerk lacked standing to invoke the Clause:

The immunity conferred by the Speech or Debate Clause is personal to members of Congress and their aides. United States v. Gravel, 408 U.S. 606 (1972). The Clerk does not enjoy Speech or Debate immunity, Powell v. McCormack, 395 U.S. 486, 507 (1969). Certainly it cannot be alleged that the Clerk has a "personal stake" in the outcome of this litigation. In fact, by the very nature of the Speech or Debate Clause, the only persons able to assert such a personal stake are members of Congress and their aides. (Id.

at 7-8] Even if the Clerk had standing to raise the issue, the plaintiff continued, the Clause did not bar disclosure of the records in this case because their release would in no way adversely affect the conduct of legitimate legislative activity:

The Speech or Debate Clause cannot be invoked here because no member of Congress will be adversely affected by the disclosure of the documents sought. Since no Congress

man is being called upon to defend his actions, disclosure
of the documents will not divert time, energy and atten-
tion from legislative tasks to defend litigation. Inasmuch
as complying with plaintiff's request will not contravene
any of the policies which the Speech or Debate Clause is
designed to foster, this privilege cannot be applied to the

present circumstances. (Id. at 9-10) Also on September 3, 1982, the plaintiff filed a separate motion to strike those parts of the Clerk's answer to the complaint and motion for summary judgment which raised the Speech or Debate Clause as a defense. The basis for this motion was the Clerk's purported lack of standing to invoke the Clause. (See discussion, supra.)

On October 4, 1982, the plaintiff filed an opposition to the Executive branch defendants' motion for summary judgment. At the outset, the plaintiff pointed out that the Executive branch defendants had completely reversed their position on the disputed records since the inception of the lawsuit: while initially they maintained that the documents were all Congressional records, they now argued that the materials were all agency records, and were exempt from disclosure under 5 U.S.C. § 552(b)(5). That argument, said the plaintiff, was no more tenable than the defendants' original contention.

First, the plaintiff asserted, Exemption 5 did not apply to communications exchanged between Congress and an agency. In his view, that exemption was intended “to protect agency deliberations, not Congressional deliberations,” and the statute "expressly defines 'agency so as to exclude Congress from its meaning.” [Plaintiff's Opposition to Executive Department Defendants' Motion for Summary Judgment, October 4, 1982, at 2 (emphasis in original)] Further, the plaintiff insisted, the "legislative history of Exemption 5 also makes it clear that Congress was concerned with protecting the communications of administrative agencies, not Congress." [Id. at 4 (emphasis original)]

Second, the plaintiff argued, Exemption 5 did not apply where records were neither solicited by the agencies involved nor submitted by outside consultants as part of the deliberative process. For this proposition the plaintiff relied on Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980). (See page 226 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) In this case, the plaintiff maintained, the Executive branch defendants had not even surmounted the first hurdle set up by Ryan in that the records in question were not solicited by the FBI. The plaintiff continued:

Indeed, the overwhelming majority of [the documents)
flowed in the opposite direction, from the FBI to Congress.
Nor can the records at stake fairly be characterized as
policy advice submitted by outside consultants. The docu-
ments which the FBI made available to the HSCA were
generally compiled for the law enforcement purposes of
the FBI. FBI's Answer to Interrogatory No. 17. Thus, most
of the documents at issue are concerned with investigative
matters, not policy deliberations. [Id. at 5]

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