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Finally, the plaintiff contended, even if some of the documents at issue did reflect the deliberative processes of the agencies involved, Exemption 5 did not necessarily apply. Again citing the Ryan case, the plaintiff maintained that even when a document reflected the deliberative process, “factual segments are disclosable unless the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are ‘inextricably intertwined with the policy-making process." (Id. at 5)

On November 24, 1982, Judge Green issued a memorandum opinion and order: (1) granting the Clerk's motion for summary judgment with respect to communications sent from the Committee to the FBI (category (E)); (2) denying the Clerk's motion in all other respects; (3) denying as premature the Executive branch defendants' motion for summary judgment on Exemption 5 grounds, without prejudice to a renewal on sufficient showing that it was justified; and (4) denying the plaintiff's motion to strike the Clerk's Speech or Debate Clause defense. (Allen v. Federal Bureau of Investigation, Civil Action No. 81-1206 (D.D.C. 1982)

Judge Green first addressed the question of whether the documents at issue were Congressional records under the holdings of the Goland and Holy Spirit cases. She concluded that they were not, in essence accepting the plaintiff's arguments that the letters of Chairman Stokes and the Clerk, the nondisclosure agreement, and a memorandum of understanding did not indicate a sufficient assertion of Congressional intent to retain control over the documents:

To show Congress' assertion of control over the creation of the records here, the Clerk relies on a memorandum of understanding between the Attorney General and the Committee. The memorandum of understanding, however, establishes the terms for congressional access to agency records; it does not indicate that the information provided would thereafter belong exclusively to Congress. See exhibit 3 to the Clerk's motion for summary judgment. The nondisclosure agreement signed by Committee staff employees similarly establishes the rules for congressional access to information without asserting control over it. See exhibit 6 to the Clerk's motion for summary judgment.

The Clerk relies on Chairman Stokes' letter of March 26, 1979 and the Clerk's letter of March 2, 1981 to show Congress' assertion of control upon transfer of the records. However, the Committee expired on January 3, 1979 at the close of the 95th Congress. House Resolution 49 authorized Chairman Stokes of the Committee “to exercise the authority of the former select committee with respect to the handling of classified materials relating to the operations of such committee." H.R. Res. 49, 96th Cong., 1st Sess., 124 Cong. Rec. 414-15 (1979). Surely not all the records of the Committee can be considered classified. The Clerk's letter is entitled to even less weight because it was written after the records had been transferred, more than two years after the Committee's investigation ended, and in response

to FOIA requests with the FBI. [Memorandum opinion,

November 24, 1982, at 4-5) Judge Green also dismissed the Clerk's argument that Congress, like a grand jury, had an interest in keeping its deliberations secret:

The Clerk's analogy of congressional investigations to
grand jury proceedings is erroneous. No statute prohibits
disclosure of congressional investigations, but Rule 6(e) of
the Federal Rules of Criminal Procedure has been applied
to exempt grand jury proceedings from the Freedom of In-
formation Act. See Iglesias v. Central Intelligence Agency,
525 F. Supp. 547 (D.D.C. 1981). Congressional investigations
to oversee the Executive Branch and develop legislation
differ markedly from the grand jury's determination
whether or not to indict. The need for secrecy in the latter
proceeding is clearly greater. Most congressional investiga-
tions, in fact, are publicized thoroughly to explain what
Congress is doing and to seek public comment and partici-

pation. (Id. at 5] Judge Green next addressed the applicability of the Speech or Debate Clause and concluded that the FBI investigatory records, created before the Committee's existence, did not reflect the "deliberative and communicative processes" of the Committee and were therefore outside the protection of the Clause. While the judge admitted that parts of other documents, reflecting FBI communications within or without the agency pertaining to the Committee, might be barred from disclosure by the Clause, she ruled that "it would be erroneous to withhold those records in their entirety on this basis." [Id. at 6] Further, she said, dissemination of the records to the public or throughout the Executive branch might have eliminated such protection.

Judge Green agreed with the Clerk, however, that "communications sent from the Committee to the FBI in pursuit of a lawful congressional investigation are an integral part of the deliberative and communicative process' of Congress," and hence were protected by the Clause. (Id.] Barring the production of the documents originating with the Committee, whether in the possession of Congress or an agency, was also consistent with Congress' exclusion of itself from the FOIA, Judge Green ruled, and she noted that she would "not permit plaintiff to obtain from the FBI what he could not get from Congress directly." [Id. at 3]

Finally, Judge Green addressed the Executive branch defendants' Exemption 5 claim and ruled that it was premature:

The exemption five claim is premature. First, defendants have failed to comply with Local Rule 1-9(h) of the United States District Court for the District of Columbia. They did not provide any information regarding this claim in their statement of material facts to which there is no genuine issue. See Gardels v. Central Intelligence Agency, 637 F. 2d 770, 773 (D.C. Cir. 1980). More important, they made no attempt to apply this claim to the six categories of records or

21-618 0-83_-32

any individual documents. See Playboy Enterprises v. De

partment of Justice, supra. (Id. at 8] Judge Green did find that FBI investigatory records provided to the Committee did not reflect any deliberative process by the Committee or the FBI's interaction with the Committee. With respect to the application of Exemption 5 to the remaining categories of records, the judge ruled that it must await "a more particularized presentation of the documents." [Id.]

Subsequent to Judge Green's decision, status calls were held in the case on January 25 and February 24, 1983.

Status—The case is pending in the U.S. District Court for the District of Columbia. The next status call is scheduled for March 15, 1983.

The complete text of the November 24, 1982 memorandum opinion of the district court is printed in the “Decisions” section of this report at page 555. Allen v. Department of Defense

Civil Action No. 81-2543 (D.D.C.) On October 20, 1981, Mark Allen, a private citizen researching the work of the House Select Committee on Assassinations ("Committee") filed suit in the U.S. District Court for the District of Columbia under the Freedom of Information Act (5 U.S.C. $$ 552, et seq.) (“FOIA”) against the Department of Defense (“DOD”), the Central Intelligence Agency ("CIA”), and Edmund L. Henshaw, Jr., the Clerk of the U.S. House of Representatives. (Civil Action No. 81-2543] The plaintiff sought copies of “all correspondence or any records of any communications” between the Defense Intelligence Agency ("DIA”), a component of the Defense Department, and the Committee, and the CIA and the Committee, relating to the Committee's investigation into the assassination of President John F. Kennedy. [Complaint, October 20, 1981, s 7, 19) The plaintiff also requested “all internal agency memoranda, all inter-agency memoranda, and any records of telephone conversations" relating to the investigation in the files of the DIA or CIA. [Id., ss 13, 23)

The plaintiff included the Clerk of the House as a defendant in the action on the ground that “as custodian of Congressional records, he has asserted that Congress retains control over records sought by Allen that are in possession of DOD and the CIA.” [Id., [5]

On December 4, 1981, the Clerk filed a motion to dismiss the complaint on the grounds that the court lacked jurisdiction over the subject matter and personal jurisdiction over him, and because the complaint failed to state a claim on which relief could be granted. In an accompanying memorandum, the General Counsel to the Clerk summarized his position as follows:

It is the Clerk's position in this case that he cannot be named as a defendant in an action under the Freedom of Information Act, because the statute does not waive the sovereign immunity of the Congress as a branch of government, but rather specifically exempts the Congress from the Act. 5 U.S.C. $ 551(1)(A) (1976). It is the further posi

tion of the Clerk that he is not subject to suit simply on
the basis of his assertion of the Congressional exemption
since the Clerk's performance of archival and custodial re-
sponsibilities, in connection with which the claim is assert-
ed, delegated to him by House rules, are legislative in
nature, and therefore immune under the Speech or Debate
Clause, U.S. Const., art. I, § 6, cl. 1. [Memorandum of
Points and Authorities in Support of Motion to Dismiss,

December 4, 1981, at 2-3] First addressing the Congressional exemption, the General Counsel argued that the Clerk was immune from suit under the FOIA because he was an officer of Congress, a statutorily exempt (under 5 U.S.C. § 551(1)(A) entity. He noted that the Congressional exemption would be rendered meaningless “if it could be circumvented by simply naming officers, employees or functionaries of the legislative branch." (Id. at 3, n. 3]

To preserve the express statutory exemption for Congress under the FOIA, the General Counsel asserted that the Clerk had to be dismissed as a party defendant, although he pointed out that it would be perfectly consistent with the statute to allow the Clerk to participate as amicus curiae on the pure legal question of the scope of the exemption. The General Counsel reasoned:

The law of this Circuit implicitly recognizes that the claim of congressional exemption under the Act may be litigated without either the presence of the Congress or its officers as party defendants. Holy Spirit Association v. Central Intelligence Agency, 636 F. 2d 838, 842 (D.C. Cir. 1980). In that case, the claim of congressional exemption, based as it is here partially on a letter from the Clerk of the House, was resolved under legal standards previously enunciated. Goland v. Central Intelligence Agency, 607 2d 339 (D.C. Cir. 1978) vacated in part on other grounds, 607 F. 2d 367 (D.C. Cir. 1979) cert denied, 445 U.S. 927 (1980). The instant case can be resolved on the same basis, without the Clerk's presence as a party, furnishing his legal position to the Court as amicus curiae. Holy Spirit Association v. Central Intelligence Agency, supra. [Id. at 4 (foot

note omitted] Turning next to the Speech or Debate Clause 1 issue, the General Counsel argued that the Clerk's performance of legislatively assigned (by the rules of the House) custodial functions, including an assertion of exemption under the FOIA, was immune from suit under the Clause:

[T]he Clerk in discharging his duties with respect to House
papers is "engaging in a sense in acts generally done in re-
lation to the business before Congress." . .. The decision
whether to make public all, part or none of legislative pro-
ceedings is equally immune from suit, Doe v. McMillan,
412 U.S. 306, 312 (1973), Aff g Doe v. McMillan, 459 F.2d

1 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, čl. 1]

1304, 1315 (D.C. Cir. 1972) and the Clerk's interaction with
agencies to protect the non-public portion of congressional
proceedings can no more serve as a predicate for suit
against the Clerk under the Act, than a decision to publish
or not to publish portions of legislative proceedings involv-
ing an investigation into the assassination of President
Kennedy or Martin Luther King. United States v. Peoples
Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C.
1981) Doe, supra at 312 (legislative decision to authorize
publication immune). Goland v. Central Intelligence

Agency, supra at 345 n. 30. (Id. at 5-6 (footnote omitted)] On December 7, 1981, the Defense Department and the CIA filed their answer to the complaint, asserting that: (1) it failed to state a claim upon which relief could be granted; (2) the court lacked jurisdiction over the subject matter of the action in that no "agency record” had been improperly withheld; and (3) with respect to the CIA, the plaintiff had failed to exhaust his administrative remedies.

On December 21, 1981, discovery began in the case with the plaintiff filing his initial interrogatories and requests for production of documents on the Defense Department and the CIA. The plaintiff's requests for admissions were filed the next day.

On December 31, 1981, the plaintiff filed an opposition to the motion to dismiss of the Clerk of the House. Contending that the Defense Department and the CIA were withholding the requested documents at the behest of the Clerk” (on the grounds that they were Congressional, not agency, records), the plaintiff argued:

The actions of the Clerk of the House taken to influence federal agencies that records in their possession are Congressional records for Freedom of Information Act purposes do not constitute "an integral part of the deliberative and communicative processes” alluded to by the Supreme Court, nor is their protection “necessary to prevent indirect impairment of such deliberations.” Indeed, the Clerk has not set forth any facts showing how suit against him, in the circumstances presented by the instant suit, would either directly or indirectly impair protected legislative deliberations. [Plaintiff's Opposition To Motion To Dis

miss . . . , December 31, 1981, at 2] Because, in the plaintiff's view, the actions by the Clerk were not an integral part of the legislative process, nor were they necessary to protect legislative independence, he maintained that they were outside the protection of the Speech or Debate Clause. Accordingly, the plaintiff argued, the Clerk's motion to dismiss should be denied.

On January 19, 1982, U.S. District Judge Thomas A. Flannery issued an order granting the Clerk's motion to dismiss. Citing Holy Spirit Association v. Central Intelligence Agency, 636 F. 2d 838 (D.C. Cir. 1980) (see page 462 of this report for a discussion of that case) and Goland v. Central Intelligence Agency, 607 F. 2d 339 (D.C. Cir. 1978) (see page 223 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case),

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