Judge Flannery found that there was "no authority or necessity for retaining the Clerk as a party defendant in this action."

Subsequent to the court's order, discovery involving the Defense Department and the CIA continued. On March 12, 1982, the plaintiff filed separate motions to compel additional answers to four interrogatories propounded to the DIA and to three interrogatories propounded to the CIA. In general, the interrogatories related to whether either of the agencies was "precluded" from making any of the records sought by the plaintiff in the case available to another agency without first obtaining Congressional approval. Further, the interrogatories asked which of certain categories of records the DIA and CIA considered to be "Congressional records," and what the legal basis for such a conclusion was.2 On March 30, 1982, the agency defendants filed a memorandum in opposition to the motion to compel answers, and on April 12 the plaintiff filed a reply, again insisting that the court should require complete compliance. On April 21, 1982, Judge Flannery issued an order granting the plaintiff's motion to compel, except with respect to the interrogatories which sought the factual and legal bases for contending that certain categories of records were Congressional records. On July 27, 1982, the agency defendants filed a motion for summary judgment and an accompanying memorandum. Initially the memorandum made several points: (1) the CIA's compilation of materials (some 60 boxes of documents and microfiche) all related to the nature and extent of the Select Committee's inquiry and was compiled solely because of the Select Committee's investigation; (2) the DIA's material (which, by contrast to that of the CIA, was "very small," and consisted primarily of requests for information from the Select Committee and responses thereto) in the main also existed only because of the Committee's investigation; and (3) the compilation of documents held by the CIA had been withheld from the plaintiff "in accordance with and pursuant to the Segregation Agreement entered into between the Select Committee and the CIA and in compliance with Congress' specific assertion of concurrent control over the release of the documents in this segregated compilation." [Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment, July 27, 1982, at 2] After pointing out the extremely sensitive nature of the Select Committee's investigation, the memorandum noted that on March 26, 1976, Chairman Louis Stokes had written to CIA Director Stansfield Turner and had specifically requested that nothing from the segregated collection of materials relating to the investigation be released without Congressional approval. (The memorandum also stated that most of the material involved was "classified by the

2 The categories identified by the plaintiff were:

A. DOD or CIA records sent to the House Select Committee on Assassinations.

B. DOD or CIA records made available to the House Select Committee on Assassinations for perusal at DOD or the CIA.

C. Internal DOD or CIA memoranda pertaining to the House Select Committee on Assassinations.

D. DOD or CIA communications with other agencies pertaining to the House Select Committee on Assassinations.

E. Communications sent from the House Select Committee on Assassinations to DOD or the CIA.

F. Communications sent from DOD or the CIA to the House Select Committee on Assassinations.

CIA for reasons of national security, and remains so classified," and the "compilation of documents was, and continues to be, treated as distinct from routine CIA files." [Id. at 4]) The memorandum pointed out that the plaintiff's first FOIA request to the CIA came over 20 months after Chairman Stokes' letter. With respect to the DIA, the memorandum stated that the limited materials relating to the Select Committee's investigation were also kept separate from the normal records system and had not been made available to the public or any other agency.

Given this factual background, the agency defendants argued first that the compilation of documents held by the CIA was not an "agency record" within the meaining of the FOIA. They explained:

Both the circumstances attending the compiling of these documents by the CIA and the manifestation of congressional intent when the compilation was left in the CIA's possession make clear that these are not agency records within the meaning of the FOIA.** Recognizing that the confidentiality and integrity of this collection of documents as compiled would be peculiarly within its concern, the House Select Committee on Assassinations negotiated an agreement with the CIA before the compilation took place, which specifically provided for the CIA to segregate this HSCA collection and keep it secure. As amended, that agreement reads:

Prior to its termination, the Committee will
identify to the C.I.A. those documents which are
to be made part of the permanent records of the
C.I.A. under records schedules approved by the
Archivist of the United States, which control the
disposal of all Agency records. In view of the large
volume of material, it is agreed that physical seg-
regation of the material will not be required in all
cases. The Committee will designate those materi-
als provided by C.I.A. and examined by the Com-
mittee that are to be kept and preserved within a
segregated and secure area within C.I.A. for at
least thirty (30) years unless the D.C.I. and the
House of Representatives agree to a shorter period
of time. (emphasis added).

This agreement is in full harmony with and reflects the
Select Committee's treatment of the materials which it
sent to the National Archives for placement under seal.
This action strongly bespeaks Congress' intention regard-
ing the confidentiality to be accorded all documents used
in its investigation.

The conditions under which Congress left the compila-
tion in the CIA's possession likewise involved a clear exer-
cise of concurrent Congressional control over its disposi-
tion. On March 26, 1979, as the Committee was concluding
its investigation, and over 20 months before plaintiff's ini-
tial FOIA request to the CIA, Committee Chairman Louis

Stokes wrote Admiral Stansfield Turner, Director of Cen-
tral Intelligence, stating:

A great deal of material has been generated by
your Agency in response to specific requests or
concerns of the Select Committee. In addition,
your Agency is in physical custody of a variety of
materials originating from the Select Committee.
It can be anticipated that your Agency will re-
ceive requests under the Freedom of Information
Act for access to these materials. The purpose of
this letter is to request specifically that this Con-
gressional material and related information in a
form connected to the Committee not be disclosed
outside your Agency without the written concur-
rence of the House of Representatives. (emphasis
added).

This explicit Congressional assertion of continued concur-
rent control over the disposition of this compilation of rec-
ords makes abundantly clear that they are not "agency
records" within the meaning of the FOIA.

**Because of its responsibility to protect sensitive classified information in many of the documents in the compilation, the CIA continues to exercise a veto over public release of that information in whatever form it is contained. Congress, however, has concurrent control over the entire compilation. Because of this, the compilation as an entity could be made public by the CIA only with the concurrence of Congress. Dosell Aff., ¶¶ 11, 15. This congressional control prevents the segregated compilation from being freely disposed of by the CIA and whether or not it makes the records wholly "congressional" is unnecessary to decide, as the concurrent control is clearly sufficient to prevent the compilation from being an "agency record" within the meaning of FOIA.

[Id. at 8-9]

The defendants insisted that applicable precedent clearly supported their claim that the documents were not "agency records' and were not subject to the free disposition of the CIA. In particular they cited Goland v. CIA, 607 F. 2d 339 (D.C. Cir. 1978), modified in part on other grounds, 607 F. 2d 367 (D.C. Cir. 1979), cert. denied, 445 U.S. 927 (1980); Holy Spirit Association for the Unification of World Christianity v. CIA, 636 F. 2d 838 (D.C. Cir. 1980), vacated in part as moot, 50 U.S.L.W. 3709, 3715 (March 9, 1982); and Ryan v. Department of Justice, 617 F. 2d 781 (D.C. Cir. 1980). The Federal defendants emphasized that a failure to respect Congress' assertion of concurrent control in this case would cause severe problems since "it would place Congress' oversight function at loggerheads with its 'constitutional prerogative' to maintain the secrecy and confidentiality of its investigations." [Id. at 11] They continued:

It is difficult to imagine a better example of Congress' ex-
ercise of its oversight function than the hearings of the
House Select Committee on Assassinations. The Commit-
tee existed, and was allowed to continue its work, in large
measure, because it was providing a review of the perform-
ance of agencies like the CIA. If Congress is held here to
be unable to expect agencies to compile documents on
their own activities, while still maintaining the confiden-

tiality of the congressional inquiry, such oversight would
be, as a practical matter, impossible to perform. Such "a
development would be at odds with the public policy which
encourages broad congressional access to governmental in-
formation," Murphy v. Dept. of the Army, 613 F. 2d 1151,
1156 (D.C. Cir. 1979), and, indeed, would seriously encroach
upon Congress' purview over its own investigations. It is
inconceivable that Congress intended the FOIA to have
this effect. See, Washington Post Co. v. Dept. of State, 501
F. Supp. 1152, 1157 (D.D.C. 1980). [Id. at 11-12 (footnotes
omitted)]

The Federal defendants next argued that the CIA compilation of documents had not been "improperly withheld" under the FOIA, even if parts of the collection of materials held by the agency were "agency records." They asserted that the CIA was merely complying with an agreement with a co-equal branch of government not to disclose the information without approval, and that such compliance could not possibly constitute an "improper" withholding under the FOIA. The defendants reasoned:

Congress obviously has the right to protect its own docu-
ments. They are exempted from disclosure by "the Consti-
tution, longstanding practice, and...
and . . . congressional
rules." Goland v. CIA, supra, 607 F. 2d at 346. They are
also exempt from disclosure under the FOIA. 5 U.S.C.
§§ 552(a)(4)(B), 551(1)(A). Occasionally, the sensitive nature
of a congressional investigation requires that Congress be
able to ensure the confidentiality and secrecy of its inquir-
ies and Executive branch responses to them. Where, as
here, disclosure of the records examined would also show
precisely the parameters of a congressional investigation
which Congress has itself indicated should be kept confi-
dential and secret, the danger to the congressional over-
sight function is great.

For that reason, Congress must be able not only to pro-
tect its own records, but also be able, as it has here, to
enter into agreements with agencies which allow it to re-
strict the release of records which would disclose its inves-
tigative activities and interests. See Doswell Aff. at ¶¶ 12,
13. Although this agreement leaves the HSCA records in
the hands of the CIA, it gives Congress veto over any
public disclosure, Doswell Aff. 11, 15, thereby ensuring
the Congress' interests are protected as if these records
were all congressional records. [Id. at 13]

Finally, the Federal defendants maintained that both the CIA compilation and the DIA materials were exempt from compelled disclosure under Exemption 5 of the FOIA (5 U.S.C. § 552(b)(5)) which excludes "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 defendants argued that consultation was at the core of the "deliberative process" protected by Exemption 5, and that "[a]part from the interest in preserving the privacy of the deliberative process, this CIA compilation and

the DIA HSCA documents would be unavailable because their production would impede that constitutionally-mandated process of interbranch communication, essential to the performance of agency investigation and congressional oversight." [Id. at 16]

On August 2, 1982, the Clerk of the House filed an amicus brief supporting the motion for summary judgment by the Federal defendants. At the outset, the brief stated that the Clerk agreed fully with the contentions of the defendants that: (1) the records at issue were not "agency records" because they were subject to concurrent Congressional control; and (2) the documents were exempt from disclosure under Exemption 5 as part of the deliberative process. Further, the Clerk argued, even if the documents were "agency records" they were privileged from disclosure under the Speech or Debate Clause as part of the "deliberative and communicative process" of Congress. Emphasizing the importance of the "constitutionally derived congressional investigative authority and the significance of information gathering in exercise of that function," the Clerk maintained:

The HSCA's relationship with the CIA during its investigation therefore fits comfortably within the constitutionally based functions of Congress: the gathering of information to enable it to amend or pass laws respecting the subject matter and oversight of the performance of the Department of Defense, the Defense Intelligence Agency and CIA in discharging their responsibilities, both of which were specifically stated objectives of HSCA.

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 House," Gravel 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, supra, Plaintiff's request contravenes the Article I, section 6 prohibition against "questioning" of the legislative process anywhere outside Congress, particularly since it requires compelled disclosure. [Memorandum of the Clerk of the House as Amicus Curiae, August 2, 1982, at 4-5]

The Clerk also asserted that the plaintiff was seeking to obtain the requested documents indirectly through Executive branch. agencies because he could not obtain them directly by going to Congress. Citing Tavoulareas v. The Washington Post, 93 F.R.D. 11 (D.D.C. 1981) (see page 434 of this report for a discussion of that case), the Clerk argued that the Speech or Debate Clause barred such discovery via third parties of the information gathering and investigative processes of Congress. Further, the Clerk continued, the final report of the Select Committee extensively detailed the