work of the investigation, and to the extent the Committee chose not to publish or make available to the public the interbranch communications sought by the plaintiff, "it exercised its constitutional right to keep those records secret- -a decision which should not be overturned under the FOIA." [Id. at 7] The Clerk concluded:

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 proceedings it deems shall be publicly available, U.S. Const., art. I. § 5, cl. 3, the Congress-not agencies through application of FOIA-should make that determination. Disclosure of these matters under FOIA would force the Congress "to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role." Goland v. CIA, supra at 346. [Id. at 8]

On October 12, 1982, the plaintiff filed an opposition to the agency defendants' motion for summary judgment which argued that: (1) the disputed documents were "agency records"; (2) the records were not protected from disclosure under Exemption 5; and (3) the CIA's compilation of documents was "improperly withheld" under the FOIA.

At the outset, the plaintiff insisted that he was seeking all CIA records pertaining to the Select Committee investigation, whether kept in a special compilation or not. In fact, the plaintiff said, his request made no reference to such a "compilation" and he did not even know one existed at the time he made the request. "Where and how the CIA's records relating to the HSCA's investigation are kept is of no concern," the plaintiff argued, and it was irrelevant to him whether he was "provided copies made from the CIA's special compilation or from the CIA's 'working files.'" [Plaintiff's Opposition To Defendants' Motion for Summary Judgment, October 12, 1982, at 3] He continued:

Most of the records at issue in this case were generated by the CIA and reposed in its files long before the HSCA came into being. They are indisputable "agency records" subject to release under FOIA. Since the CIA has the means of determining which of these original or working file documents were made available to the HSCA, it can simply copy the originals for Allen, leaving its special compilation undisturbed. [Id.]

Like the agency defendants, the plaintiff also relied on the Goland case, although in his view that case required a ruling that

the documents at issue were "agency records." Since the documents were primarily agency-generated records, the plaintiff asserted that the test to be employed in deciding whether the documents could be withheld was the opposite of Goland; that is, whether the documents had passed from the control of the agency and become property subject to the free disposition of Congress. The plaintiff contended they had not passed to the control of Congress since Congress could not make the materials public without the consent of the CIA.

Further, the plaintiff rejected the argument that the documents were not "agency records" because Congress and the CIA exercised joint or concurrent control over them. He dismissed the segregation agreement entered into between the Committee and the CIA by noting that it did "not address the question of access to these records; it merely provide[d] that they [were] to be kept and preserved in a certain manner for thirty years, presumably so that Congress could have them readily available in the event that a further reopening of the assassination investigation should occur." [Id. at 5] In fact, the plaintiff said, the agreement clearly stated that the documents were to be made "part of the permanent records of the CIA." Similarly, the plaintiff downplayed the importance of Chairman Stokes' March 26, 1979 letter to CIA Director Turner since, at the time he wrote the letter, the Committee "had gone out of existence and he was merely the former chairman of a defunct committee" [Id. at 7], and therefore lacked authority to assert control over the records. A subsequent memorandum of agreement executed by the Chief Counsel and Staff Director of the Committee with the CIA was dismissed for similar reasons.

The plaintiff next argued that neither the CIA compilation nor the DIA materials were protected from disclosure by Exemption 5 of the FOIA. That exemption did not apply to communications between Congress and an agency, the plaintiff contended, since it was intended to protect agency, not Congressional, deliberations. Both the applicable case law and the legislative history of Exemption 5 supported that construction, he noted. Additionally, the plaintiff maintained, Exemption 5 did not apply to the records at issue under the holding of Ryan v. Department of Justice, supra. (See page 226 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) The plaintiff pointed out:

[W]hen the Ryan Court extended Exemption 5 protection
to records solicited from individual Senators to the Justice
Department, it erected a triple barrier. In order for Ex-
emption 5 to apply to materials submitted from outside the
agency, the records must be: (1) solicited by the agency; (2)
submitted by outside consultants; (3) as part of the delib-
erative process.

This case does not surmount the first hurdle set up by
Ryan. The records in question were not solicited by the
CIA. Indeed, it was the CIA which made them available to
Congress. Nor can the records at issue be fairly character-
ized as policy advice submitted by outside consultants.
Most of the records pre-existed the HSCA investigation by

many years. These certainly did not deal with policy
advice exchanged between the CIA and Congress. Because
of the investigative nature of the HSCA probe, it seems
likely that most, if not all, of the records generated at the
time of the HSCA probe were of an investigative nature
and did not concern policy matters. [Id. at 16]

Moreover, the plaintiff contended, even if some of the documents at issue did reflect the deliberative processes of the agencies involved, Exemption 5 would 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 17]

Finally, the plaintiff argued, the defendants' policy arguments did not provide grounds for invoking Exemption 5 (since policy grounds could not be substituted for exemptions) and even if Exemption 5 applied, Congress had waived it (by publishing a report which utilized the agency documents).

Turning lastly to the defendants' argument that the CIA's compilation of the documents had not been "improperly withheld" under the FOIA, the plaintiff maintained that "the CIA's claim that it cannot release the records because it must comply with its agreement with Congress is baseless." [Id. at 22] He concluded:

Defendants' argument that Congress has a right to protect its own documents is of no avail because, as has been shown above, most of the records at issue are not now, and never have been, Congressional documents. Furthermore, those which may have been Congressional records lost that status when Congress failed to protect it.

If the records at issue in this case are "agency records," as Allen maintains, and if Exemption 5 does not apply as a threshold matter, as Allen has demonstrated above, then the CIA is improperly withholding records in violation of the Freedom of Information Act. [Id. at 22-23]

Also on October 12, 1982, the plaintiff filed a reply to the amicus brief of the Clerk of the House. At the outset, the plaintiff argued that the Clerk lacked standing to raise the Speech or Debate Clause as a bar to disclosure of the disputed records. In the plaintiffs' view, the Clause's immunity was personal to Members of Congress and their aides, and did not apply to the Clerk. Further, said the plaintiff, the Clerk had no "personal stake" in the outcome of the litigation, and was at best merely "custodian" of the disputed records. "In fact, since the records at issue are agency records, not congressional records, he is not even custodian," the plaintiff noted. [Plaintiff's Reply to Memorandum of the Clerk of the House as Amicus Curiae, October 12, 1982, at 2]

If the court ruled that the Clerk did have standing to raise the Speech or Debate Clause, the plaintiff argued that it still did not bar disclosure:

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 plantiff'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 4]

On November 9, 1982, the defendants filed a reply to the plaintiff's opposition to their motion for summary judgment. In sum, the defendants contended that the plaintiff had failed to raise any genuine issues of material fact or law that would preclude the court from granting their motion. More specifically, the defendants asserted that: (1) joint control of the segregated collection of documents was consistent with the premise that the materials were not subject to the free disposition of the CIA and therefore were not "agency records" under the holding of the Goland case; (2) the evidence established that the CIA and Congress in fact had joint control over the documents despite the fact that there was no formal memorandum of agreement between the Committee and the CIA with respect to designating specific materials for inclusion in the segregated compilation; and (3) the CIA and the DIA documents were protected from compelled disclosure by the deliberative process portion of Exemption 5, since disclosure would reveal the "nature, scope and focus of HSCA requests for information and provide information concerning the investigative and information gathering process of the HSCĂ . . . [and] would thus provide revealing insights into the investigative and deliberative process of the HSCA and the Executive agencies cooperating with it," [Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment, November 9, 1982, at 10]

On November 19, 1982, the defendants' motion for summary judgment was argued before Judge Flannery and taken under advisement.

On January 10, 1983, the defendants filed a supplemental memorandum concerning certain documents located in the files of the Office of the General Counsel of the CIA which related to the Committee investigation. The CIA contended that because of an "administrative oversight" the documents were "inadvertently not included" with the rest of the segregated compilation. Nonetheless, the CIA insisted, the documents were entitled to the same protection as the segregated collection.

On January 24, 1983, the plaintiff filed a response to the defendants' supplemental memorandum which asserted that the documents in the CIA General Counsel's office were not protected under any legal theory or under the explicit terms of the segregation agreement between the CIA and the Committee.

On January 25, 1983, the plaintiff filed a supplemental memorandum to bring to the court's attention several recent decisions in the District of Columbia Circuit which in his view were relevant to the case. The cases were: Allen v. Federal Bureau of Investigation. No. 81-1206 (D.D.C. November 24, 1982) (see page 6 of this report for a discussion of that case); Holy Spirit Association for the Unifi

cation of World Christianity v. Central Intelligence Agency, supra; American Federation of Government Employees v. Pierce, No. 823111 (D.D.C. January 21, 1983) (see page 343 of this report for a discussion of that case); and McGehee v. Central Intelligence Agency, No. 82-1096 (D.C. Cir. January 4, 1983).

Status-The case is pending in the U.S. District Court for the District of Columbia. As of March 1, 1983, the court had not ruled on the defendants' motion for summary judgment.

Arieff v. Department of the Navy

No. 82-1536 (D.C. Cir.)

On September 29, 1981, Irwin B. Arieff, a professional journalist employed by Congressional Quarterly filed a complaint for injunctive relief under the Freedom of Information Act (5 U.S.C. §§ 552, et seq.) ("FOIA") against the U.S. Department of the Navy ("Navy"). The suit, filed in the U.S. District Court for the District of Columbia [Civil Action No. 81-2406], sought the production of records concerning the distribution of prescription drugs by the National Naval Medical Center ("NNMC"), an agency within the Navy, to the Office of the Attending Physician to the U.S. Congress ("OAP"). According to the complaint, the plaintiff had previously requested access to the records by letter dated January 19, 1981, and had stipulated that the names of patients and other identifying characteristics could be deleted from whatever documents were provided. Nonetheless, the complaint stated, both the plaintiff's initial request for access and a subsequent appeal were denied in relevant part, because, in the Navy's opinion, the materials were not "agency records" and in any event were exempt from disclosure because their release would result in a "clearly unwarranted" invasion of personal privacy.

On November 13, 1981, the plaintiff filed a motion for summary judgment. In it, he argued, first, that the requested materials were in fact "agency records" because they "were generated by the Navy, . . . are in the possession of the Navy, . . . and are under the control of the Navy." [Memorandum of Points of Authorities in Support of Plaintiff's Motion for Summary Judgment, November 13, 1981, at 3]. The plaintiff noted that his request consisted of nothing more than portions of a computer print-out which identified each substance, the quantity supplied, and the receiving entity. Further, he maintained, the records were simply "bulk supply documents maintained by the Navy in the ordinary course of business to record shipments of these supplies throughout the Naval medical system." [Id.]

The plaintiff took pains to undercut the argument that the requested materials might be Congressional records and therefore exempt from disclosure under the FOIA. Merely because an agency prepared records which involved Congress did not make those records "Congressional records," the plaintiff argued, citing Holy Spirit Ass'n for the Unification of World Christianity v. CIA, 636 F. 2d 838 (D.C. Cir. 1980) (see page 462 of this report for a discussion of that case) and Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1979). The question of "control" of the records