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branch officers, in that case a civilian employee at a Naval
facility, who communicated to Congress a report, alleged to
be defamatory, criticizing certain individuals at the facili-
ty, and were absolutely immune “in respect of the publica-
tion to members of Congress.” 360 U.S. at 596. The interest
in having the legislature fully informed is paramount, be-
cause it coincides with the public interest in having Con-
gress aware of all facts in shaping remedial legislation,
and in performing its other constitutionally based func-

tions. (Id. at 8 (footnotes omitted)] Further, said the amici, the communication was privileged because it related to a matter over which the relevant subcommittee had jurisdiction and on which a proceeding was initiated:

As discussed earlier, Congress has a "standing order," so to speak, with CRS for all data bearing on legislation and is statutorily mandated to make such data available to committees. 2 U.S.C. $ 166(d)(4). Under the rules of the House, the standing committees of the House are to maintain "continuous" oversight of the laws, agencies and programs within their jurisdiction, to determine whether those laws and programs are being carried out as intended by Congress, to undertake “futures research and forecasting on matters within the jurisdiction of that Committee" and to establish special oversight subcommittees to meet their responsibilities in these areas. H.R. Rule X, cl. 2 (a) and (b), Rules of the House, supra $$ 692(a), 692(b).

Together with the statutory "standing order” for data these rules would appear to constitute sufficient basis for finding that even without the subsequent interest expressed by the staff of the House subcommittee, the communication to Lindahl is privileged. The oversight rules amount to nothing less than a legislatively mandated “preliminary inquiry” to a proceeding on all subjects within the committees jurisdiction and communications to CRS

related to these subjects should be protected. [Id. at 11] Finally, the amici rejected the plaintiffs' argument that the common law privilege was not applicable because the memorandum transmitted to CRS was not relevant to the issues which were ultimately investigated by the subcommittee. The amici asserted that legislative relevancy was "defined by the limits of the committees' jurisdiction and is broader than the strict legal or evidentiary use of the term.[Id. at 12] Under this broad test, the amici concluded, the memorandum was relevant to the areas in which the subcommittee was involved and on which its staff was conducting inquiries.

On August 3, 1982, the defendants filed a supplement to their motion for summary judgment, bringing an additional case to the court's attention.

On August 18, 1982, the plaintiffs filed a response to the defendants' supplemental memorandum.

On December 16, 1982, the defendants filed a second supplement to their motion for summary judgment, bringing to the court's attention a recently published CRS report by Mr. Lindahl entitled "The Webster-Heise Valve: A Significant Improvement in the Internal Combustion Engine and Its Fuels?" According to the defendants, the report (which made no mention of Sun, Mr. Anderson or the purportedly libelous memorandum) discussed technical criticisms of the octane reducing device. In the defendants' view, the publication of this official CRS report demonstrated that the communication to CRS employee Lindhal of the Sun memorandum "has thus proved useful to Congress and at the same time has had no adverse effect on Webster or the Webster-Heise device.” (Second Supplement to Defendants' Motion for Summary Judgment, December 16, 1982, at 2]

Further, said the defendants, publication of the report effectively answered the plaintiffs' contention that Mr. Lindahl's activity in investigating the octane reducing device was not part of an "official” Congressional investigation. Finally, the defendants argued, publication of the report demonstrated that “the absolute privilege accorded to communications to Congress is necessary so that Congress can function in exactly the way it did here. The communication of the memorandum to Mr. Lindahl aided the Congressional investigation into the merits of the Webster-Heise valve and, because it was governed by Congressional confidentiality rules and was not republished in the official report, it has resulted in no injury either to Mr. Webster or the Webster-Heise Corporation." [Id. at 2-3]

On January 3, 1983, the plaintiffs filed a response to the defendants' second supplemental memorandum. The plaintiffs noted that the recently published Lindahl report had been initiated by a March 2, 1982 letter to the Director of CRS from U.S. Senator Robert T. Stafford, Chairman of the Senate Committee on Environment and Public Works. The plaintiffs continued:

The mere fact that the Congressional Research Service was asked to prepare a report on the merits of the Webster-Heise valve in March of 1982 and subsequently did so does not in any way establish that Anderson's sending of a letter in December of 1980 was preliminary to a legislative proceeding. In fact, there is no evidence that, at the time Anderson sent his letter to Lindahl, that communication had any relation to a proceeding that was "actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding." See Restatement (Second) of Torts, $588(c); Opposition of Plaintiffs to Defendants' Motion for Summary Judgment, [P. 5-6. [Plaintiffs' Response to Second Supplement to Defendants

Motion For Summary Judgment, January 3, 1983, at 2] The plaintiffs insisted, as they had previously, that the common law legislative privilege required a connection to such a contemplated proceeding. They reiterated that neither the case law nor public policy supported a broader rule which would extend the privilege to any communication which "ultimately proves useful to Congress at some indeterminate point in time.” [Id.]

StatusThe case in 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.

XIV. Prosecution for Disrupting Congressional Proceedings United States v. Roth

[See page 449.)

DECISIONS

(553)

21-618 0-83_-36

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FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS

Civil Action No. 81-1206

November 24, 1982

MEMORANDUM OPINION

The plaintiff, Mark Allen, seeks access under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), to records of any communications between the United States House of Representatives' Select Committee on Assassinations (Committee) and the Federal Bureau of Investigation (FBI) relating to the Committee's investigation into the assassination of President Kennedy.

This action is before the Court on motions for summary judgment by defendant-intervenor Clerk of the House of Representatives (Clerk) and the Executive Branch defendants, the FBI and Department of Justice. The Clerk argues that the more than 300,000 pages collected by the Committee and held by the FBI are congressional documents under the test established in Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978), modified on other grounds, 607 F.2d 367 (D.C. Cir. 1979), cert. denied, 445 U.S. 927 (1980). In addition, the Clerk contends that the Speech or Debate Clause of the Constitution, Article I, § 6, cl. 1, bars their disclosure. The Executive Branch defendants, on the other hand, argue that all the records are protected from disclosure by exemption five of the FOIA, 5 U.S.C. $ 552(bX5).

For the reasons stated below, the Court grants the Clerk's motion with respect to communications sent from the Committee to the FBI. The Court denies the Clerk's motion in all other respects and denies the defendants' motion in its entirety, without prejudice to a renewal on sufficient showing of exemption.

1.

The parties have divided the documents requested by plaintiff into six broad categories. The majority were either FBI records sent to the Committee or FBI records made available to the Committee for perusal at FBI Headquarters or at FBI field offices. These documents reflect the results of numerous FBI investigations and were created during the last twenty years or even earlier. Affidavit of FBI Special Agent John N. Phillips, Exhibit C to Executive defendants' motion for summary judgment, | 5.

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