LETTER TO VICTORIA TOENSING FROM (SANITIZED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200150021-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 21, 2016
• Document Release Date: December 10, 2008
• Sequence Number: 21
• Publication Date: January 20, 1984
• Content Type: LETTER

i
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? CENTRAL INTF:LLIGF:NCENCY ~I(e F*
q y
N 11
Office of Legislative Liaison
20 January 1984
Ms. Victoria Toensing
Chief Counsel
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Forwarded herewith is a recent Opinion by
Judge Smith, of the United States District
Court of the District of Columbia, in an
FOIA case which addresses the Congressional
documents issue. I think you will find
the Opinion of interest.
Sincerely,
Deputy -Di rector
Enclosure
Distribution:
Original - Addressee w/encl.
1 - D/OLL w/encl.
1 - DD/OLL w/encl.
- C/LD/OLL w/encl.
- C/Leg Div/OLL w/encl.
- OLL Subject w/encl.
1 - OLL Chrono w/o encl.
DD/OLLF----1(20 Jan 1984)
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CENTRAL. INTELLIGENCE ?NCY
J J
Office of Legislative Liaison
20 January 1984
Mr. Peter Sullivan
Minority Counsel
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Forwarded herewith is a recent Opinion by
Judge Smith, of the United States District
Court of the District of Columbia, in an
FOIA case which addresses the Congressional
documents issue. I think you will find
the Opinion of interest.
Sincerely,
Deputy,Di rector
OLL: 84-0214
STAT
STAT
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 U
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011ice of Legislative Liaison
20 January 1984
fir. Steve Berry
Permanent Select. Committee
on Intelligence
House of Representatives
Washington, D.C. 20515
Forwarded herewith is a recent Opinion by
Judge Smith, of the United States District
Court of the District of Columbia, in an
FOIA case which addresses the Congressional
documents issue. I think you will find
the Opinion of interest.
Sincerely,
Deputy.-Director
Enclosure
OLL: 84-0214
STAT
STAT
'. fry
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ILEI%TRAI. IN It. LLil.r:rv(r. WML
Office of Legislative Liaison
20 January 1984
fir. Michael J. O'Neil
Chief Counsel
Permanent Select Committee
on Intelligence
House of Representatives
Washington, D.C. 20515
Forwarded herewith is a recent Opinion by
Judge Smith, of the United States District
Court of the District of Columbia., in an
FOIA case which addresses the Congressional
documents issue. I think you will find
the Opinion of interest.
Deputy Di-rector
Enclosure
?
OLL: 84-0214
STAT
STAT
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FILED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEC201983
CENTER FOR NATIONAL SECURITY )
STUDIES, et al. , ) JAMES F. DAVEY
, Clerk
plaintiffs, )
v. ) Civil Action No. 80-1235
CENTRAL INTELLIGENCE AGENCY, )
et al., )
Defendants. )
MEMORANDUM
Plaintiff Center for National Security Studies brings this
action under the Freedom of Information Act ("FOIA"), 5 U.S.C.
? 552, against defendant Central Intelligence Agency. Currently
before the Court are cross-motions for partial summary judgment
with respect to Count IV of the complaint.
Plaintiff in Count IV seeks access to certain materials pre-
pared by defendant in the course of a 1973-76 investigation of the
United States intelligence community by the House Select Committee
on intelligence (the "Pike Committee"). in particular, plaintiff
seeks to obtain a letter, written by defendant's special counsel,
with attached materials, setting forth the intelligence community's
response to a draft report prepared by the Committee. This document,
known as the "Rogovin'Report," was submitted to the Pike Committee
by defendant on January 20, 1976. Defendant retained a copy of the
Rogovin Report in its files. See Affidavit of Lavon B. Strong at
q 10 (hereinafter "Strong Affidavit").
Following completion of the Pike Committee. investigation, and
a decision by the full House of Representatives against publishing
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? -2 ?
the Committee's report, Committee Chairman Pike and Director of
Central Intelligence Bush entered into a written agreement concern-
ing CIA storage of sensitive materials originated by the Committee
or furnished to the Committee by the intelligence community. Under
the-terms of the arrangement, as set out in Chairman,, Pike's letter
of February 20, 1976, and accepted in Director Bush's letter of
February 25, 1976, Pike Committee documents, including the original
Rogovin Report, were placed in sealed cartons and taken to CIA
facilities for safekeeping. In addition, Chairman Pike specified
that the materials:
"are placed in [CIA] custody with the
explicit understanding that they will
not be disturbed, that the cartons con-
taining these materials will not be
opened nor their contents examined
except on further authorization from
the House of Representatives or the
Speaker of the House." (Affidavit
Exhibits C, D)
On at least three subsequent occasions, certain members of
the House corresponded with defendant. and others about the arrange-
ment. On April 1, 1976, Speaker Albert denied defendant access
to the materials, stating that "it is undisputed that these files
are the property of the House." (Affidavit Exhibit F.) In 1979 and
1982, Chairman Boland of the House Permanent Select Committee, on
Intelligence ("HPSCI"), the successor to the Pike Committee,
learned of FOIA litigation involving the materials. On July 13, 1979,
Chairman Boland informed Attorney General Bell and Director Turner
that "agency documents which were prepared in response to the Pike
Committee inquiries and made available to that Committee are Pike
Committee documents," to be released only upon the "express written
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 -Z-
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authorization of this Committee." (Affidavit Exhibit G.) In
October 1982, Chairman Boland learned of this litigation. Character-
izing plaintiff's Count IV request as involving "Intelligence
y
Community comments on a draft of the report of the [Pike Committee],"
Chairman Boland stated.on October 27 that "these documents are now
the property of the Permanent Select Committee on Intelligence and
therefore of the House of Representatives. They should not be released
in any way without the express permission of the Committee." (Affi-
davit Exhibit B.) On March 4, 1983, defendant furnished to plaintiff
a copy of Chairman Boland's October 27 letter, and informed plaintiff
that, in its view, "control over the Rogovin Report rests with the
Congress of the United States rather than the CIA," and therefore,
the Report is a "congressional document,""not subject to the dis-
closure requirements' of FOIA." (Defendant's Memorandum Exhibit A.)
Plaintiff, however, is not seeking the original Rogovin Report,
but rather the duplicate defendant claims it maintained for record-
keeping'purposes. This case consequently presents an unusual but
narrow issue: whether a 1) duplicate, retained at all times by an
agency, and never physically transferred to Congress, of a 2) docu-
ment prepared and submitted by the agency to Congress, and subsequently
returned to the agency under express Congressional directives pro-
hibiting its disclosure and use, is an "agency record" within the
meaning of the Act. Upon. consideration, the Court' concludes that
the Rogovin Report is not an "agency record" and therefore is not
subject to disclosure under FOIA.
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Under 5 552 (a) (4) (B) of FOIA, a federal district court has
jurisdiction to compel agency. disclosure of documents only "upon
a-showing that an agency has (1) 'improperly'; (2) 'withheld';
(3) ''a eg cy rec='." Kissinger v. Reporter's Committee for
Freedom. of the Press, 445 U.S. 136, 150 (1980) (emphasis supplied).
Neither FOIA.nor its legislative history, unfortunately, "provides
an adequate definition of ['agency records']." Paisley v. CIA,
712 F.2d 686, 692 (D.C.Cir. 1983). See also FBI v. Abramson,
-456 U.S. 615, 626 (1982); Forsham v. Harris, 445 U.S. 169, 182 (1980);
McGehee v. CIA, 697 F.2d 1095, 1106 (D.C. Cir. 1983) modified in
other respects on reh'g, 711 F.2d 1076 (1983). The Supreme Court
and the Court of Appeals, however, have established certain. guide-
lines to be considered before a document is treated as an "agency
record." First, "mere physical location of papers and materials
[does not] confer [agency record] status.", Kissinger v. Reporter's
Committee for Freedom of the Press, supra,-445 U.S. at 157. Rather,
an agency must either "create or obtain a record as a prerequisite
-to its becoming an 'agency record' within the meaning of the FOIA,"
Forsham v. Harris, supra, 445 U.S. at 182 (emphasis supplied).
See generally Wolfe v. Dep't of Health and Human Services, 711 F.2d
1077, 1079-82 & n.6 (D.C.Cir. 1983). Second, "an agency cannot
have 'obtained' documents until it has possession or control over
them." Id. at 1079. Third, agency possession of a document, however,
does not "per se dictat[e] that document's status as an 'agency
record'." Goland v. CIA, 607 F.2d 339, 345 (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). See Wolfe v. Dep't of HHS, supra, 711 F.2d at
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1079 n.6. Under certain circumstances, records in an agency's
possession "may nonetheless be congressional documents as opposed
to agency records, and so be exempt from disclosure under FOIA,"
Paisley v. CIA, supra, 712 F.2d at 692 (emphasis supplied).l/
See-also McGehee v. CIA, supra, 697 F.2d at 1107 & n.50; Holy
Spirit Ass'n for Unification of World Christianity v. CIA, 636 F.2d
838, 840 (D.C.Cir. 1980), other portions of decision vacated and
remanded as moot, 455 U.S. 997 (1982). In summary, a document
may be within the physical possession of an agency, but it is not
subject to disclosure if it is treated as a "congressional record."
Resolution of this case turns on whether the Rogovin Report, by
virtue of the express Congressional directives regarding its
storage and disclosure, is such a "congressional record."
On several occasions, the Court of Appeals has directly
addressed the questions presented by agency possession of documents
generated by Congress. The Court has identified two "special
policy considerations" that mandate unique treatment: FOIA
disclosure requirements should not force Congress to "abandon
either its long-acknowledged right to keep its records secret
or its ability to oversee the activities of federal agencies
(a supervisory authority it exercises partly through exchanges
of documents [with agencies])...... McGehee v. CIA, supra, 697 F.2d
at 1107-08 (footnote omitted). See also Goland v. CIA, supra,
1/ Congress is not regarded as an "agency" under the Act, see 5 U.S.C.
S552(e), and therefore "congressional," as opposed to "agency," records,
are not subject to the disclosure requirements of FOIA." See Paisley v.
CIA, supra, 712 F.2d at 688 n.2.
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697 F.2d at 346; Paisley v. CIA, supra, 712 F.2d at 693 n.30. Con-
sequently, the Court in Goland held that documents, originating in
Congress but in possession of an agency, should be treated as agency
records where "under all the facts of the case the document has passed
from the control of Congress and become property subject to the free
disposition of the agency with which the document resides." 607 F.2d
at 347. The inquiry focuses on Congress' "intent to retain control
over the document," Holy spirit Ass'n for Unification of World
Christianity v. CIA, supra, 636 F.2d at 840, and, as recently explained
by the Court:
"Two factors are considered dispositive
of Congress' continuing intent to control
a document: (1) the circumstances attend-
ing the document's creation, and (2) the
conditions under which it was transferred
to the agency." Paisley v. CIA, supra,
712 F. 2d at 692.
In brief, if there are "manifest indications that Congress intended
to exert control over the documents in an agency's possession," a
court must find that the documents are "congressional records," not
subject to FOIA's disclosure requirements. Id. at 693. See also
Goland., supra, 607 F. 2d at 347; Holy Spirit Ass'n, supra, 636 F.2d
at 840-42; McGehee v. CIA, supra, 697 F.2d at 1107-08 & n.50; Ryan v.
De 't of Justice, 617 F.2d 781, 785-86 (D.C.Cir. 1980); Allen v.
Dept of Defense, CA No. 81-2543 (D.D.C. March 4, 1983), slip op. at
6-11; Letelier v. United States Dep't of Justice, CA No. 79-1984
(D.D.C. March 31, 1982), slip op. at 16-17; Miller'v. CIA, 2 GDS
181,174 (D.D.C. 1981); Dunaway v. We ste_r, 519 F.Supp. 1059, 1073-74
(N.D.Cal. 1981); Navasky v. CIA, 499 F.Supp. 269,278 (S.p.N.Y. 1980),
aff'd, No. 81-6155 (2d Cir. Nov. 30, 1981).
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? ?
The Court of Appeals, however, has addressed but never ex-
pressly held that agency-created documents, subsequently transferred
to and then returned by Congress, may qualify as "congressional
records." See Paisley, supra, 712 F.2d at 693 n.30, 695 n.41;
Holy Spirit Ass'n, supra, 636 F.2d at 843; cf. McGehee v. CIA, supra,
697F.2d at 1107 n.50, 1109; Allen v. CIA, supra, slip op. at 11-13;
Dunaway v. Webster, supra, 519 F.Supp. at 1074.31 In Paisley and
Holy Spirit Ass'n, however, the Court appeared to rely on Goland
standards in determining whether CIA-originated documents were
.properly treated as "congressional records." For example, the Court
in Paisley examined the asserted "connection of [the] documents to
Congress" to determine whether the connection "establish[ed] Con-
gressional control within the meaning of Goland." 712 F.2d at
695-96 (emphasis supplied). Similarly, in Holy Spirit Ass'n, the
Court based its decision on the absence of evidence of Congressional
intent to "retain control" over the agency-generated documents.
636 F.2d at 843. See also Letelier v. United States Dep't of
Justice, supra, slip op. at 17; Navasky v. CIA, supra, 499 F-Supp. at 278
2/ The Court in McGehee held that "all records that originate in
agencies covered by the Act constitute 'agency records'." 697 F.2d
at 1107 n.50, 1109 (emphasis in the original). Relying on McGehee,
this Court in Allen v. CIA, supra, held that materials "specifically
created by an agency in response to Congressional requests remain
subject to FOIA notwithstanding Congress' intent to control the
documents." Slip op. at 13. However, Paisley was decided six
months after McGehee, and four months after Allen v. CIA, and should
be regarded as controlling with respect to the "agency-created"
issue. As noted, the Court in Paisley specifically left open the
possibility that agency-created documents could "become congressional...
by eventual transfer to Congress or by some other means." 712 F.2d
at 6 95 n.41.
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Given that neither agency possession nor agency creation is neces-
sarily dispositive of the agency record issue, that the exchange of
documents here occurred pursuant to a very clear exercise of Congress'
oversight powers, and the nature of the Court of Appeals' decisions
in Paisley and Holy Spirit Ass'n, the Court concludes that agency-
originated materials may, under Goland, in certain circumstances be
regarded as congressional records. 3/
II.
Under Goland, as noted, the inquiry centers upon the circum-
stances attending the document's 1) creation and 2) transfer to the
agency. See Goland, supra, 607 F.2d at 347; Paisley, supra, 712 F.2d
at 692. See generally Ryan v. De 't of Justice, supra, 617 F.2d
at 785. With respect to the "creation" aspect, defendant prepared.
the Rogovin Report at the direct request of Congress; the Pike Com-
Inittee sought defendant's review of and comments upon the Committee's
draft report. See Strong Affidavit at 1 9. Although this fact alone
does not establish that the Report is a congressional record, see
Paisley, su ra, 712 F.2d at 695-96, it obviously constitutes a
relevant and important "circumstance attending the document's genera-
tion." A second aspect of the "creation" test looks to whether
Congress intended that agency-generated records would "remain secret.
See Holy Spirit Assn, supra, 636 F.2d at 843. At the time of its
request to defendant for comments upon the draft report, the
Committee did not make any specific representations that the Report
would "remain secret." However 16(a) of the Pike Committee's
3/ Plaintiff argues that agency-originated documents must be evaluated
under a different standard: "agency intent to relinquish all control
to Congress" in the initial transfer must be established before the
Court examines Congressional intent to maintain control. Memorandum
of Points and Authorities in Support of Plaintiff's Motion for Partial
Summary Judgment at 5-6 (hereinafter "Plaintiff's Memorandum"). This
argument is without support in the case law. Nothing in Paisle suggests
that agency intent is potentially dispositive; to the contrary, the Court
looked only to any "indicia of Congressional intent" in evaluating the
agency's "^^-vancinnal record" contention. SeePaisley, supra, 712 F.2d
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enabling resolution required the Committee to take all measures
necessary to prevent public disclosure of CIA information obtained
from defendant. See Strong Affidavit at 1 8. The resolution pro-
vides some evidence of a Congressional intent, at the time of the
Repqrt's creation, to "maintain congressional control over [CIA-
subthitted materials'] confidentiality." Goland, supra, 607 F.2d
at 347. See also Paisley, supra, 712 F.2d at 694.
The second element of the Goland test concerns the "conditions
under which [the documents) were transferred to the agency." Id.
at 692. Court of Appeals' decisions place, particular emphasis on
two particular "conditions": 1) whether the transfer was for a
specified "limited purpose and on condition of secrecy," Goland,
supra, 607 F.2d at 348 n.48; Paisley, supra, 712 F.2d at 695; and
2) whether Congress established "contemporaneous and specific
instructions" to the agency limiting either the use or disclosure
of'the documents." Id. at 694 (emphasis in the original). See
also Holy Spirit Ass'n, supra, 636 F.2d at 847. The record here
plainly reveals the existence of these "conditions." There can be
little question that Chairman Pike's February 1976 letter is a
"contemporaneous" and "manifest indication" of "Congressional
intent to retain control," Paisley, supra, 712 F.2d at 693-94,
over agency documents submitted to the Committee, including the
Rogovin Report. First, the letter specifically states the purpose
of the document's transfer to defendant. Second, the letter pro-
vides, that the materials are not to be disturbed or examined by
defendant or any other party without express authorizatjon of the
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House of Representatives or of its Speaker. The exchange of
letters between Chairman Pike and Director Bush in 1976 is not
the "one-sided correspondence initiated long after the original
creation and transfer of the documents" that the Paisley court found
deficient. See Paisley, supra, 712 F.2d at 695. See also Holy
Spirit Ass'n, su ra, 636 F.2d at 842. With respect to the letters
from House members written after the transfer, Paisley suggests
that such Congressional correspondence may be probative of a continu-
ing Congressional intent to retain control if the letters are not
"too general or sweeping" and include "discussion of particular docu-
ments." Chairman Boland's 1979 and 1982 letters refer to agency-
originated materials provided to the Pike Committee, and the 1982
letter refers specifically to the Rogovin Report. In summary, the
Pike letter and subsequent communications constitute the "requisite
express indication of a congressional intent to maintain exclusive
control over these particular records." Paisley, supra, 712 F.2d
at 695. Because Congress "manifested its own intent to retain
control," the "agency--by definition--cannot lawfully 'control' the
documents within the meaning of Kissinger [v. Reporter's Committee
for Freedom of the Press, supra)." Id. at 693. Certainly nothing
in defendant's conduct, as described in the Strong Affidavit 11 16,
18, and 24-25, suggests that the Report was in any "meaningful
sense the property of the CIA," or that defendant considered itself
in a position to "freely dispose" of the Report. Goland, supra,
607 F.2d at 347 (emphasis supplied). The Court therefore concludes
that the Rogovin Report must be treated as a "congressional record"
not subject to disclosure under FOIA.
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As noted, however, plaintiff is not seeking the original
Rogovin Report, but rather a duplicate defendant maintained for
record-keeping purposes. Plaintiff contends that the instructions
and limitations contained in the Pike letter apply only to the Ift
"actual pieces of paper physically transported to the CIA."
Plaintiff's Memorandum at 12. According to plaintiff's interpreta-
tion of the custody arrangement, "Congress would control the original
and the CIA would control the copy." Id. at il. Because the dupli-
cate remained at all times in defendant's files in accordance with
defendant's admitted "normal office practice" of retaining copies
of CIA-originated correspondence, plaintiff argues that the duplicate
must.be regarded as an "agency record."
Plaintiff's position reflects an unduly restrictive view of
both the Pike Committee's assertion of control over the Report, and
the concept of "agency records" itself. Acceptance of plaintiff's
position would require this Court to treat the Rogovin Report and
its duplicate as separate and distinct "records" for FOIA purposes,
and to ignore the obvious fact that both "documents", although
physically distinct, contain the same information. Certainly the
Congressional interest in the Pike Committee materials cannot be
limited to the "actual physical" originals. Congress' directives
to defendant can only be reasonably viewed as an assertion of
control over the disclosure of information contained in the Rogovin
Report, and not a concern with the format--original or photocopy-- in
which that information is presented. As in Goland, the arrangement
"evidences a Congressional intent to maintain Congressional control
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49 4P
over the document's confidentiality." 607 F.2d at 347 (emphasis
supplied). "Control over confidentiality" means "control over
disclosure"; release of a duplicate containing the same information
as the original would be clearly contrary to Congress' intent that
disclosure of the information, in whatever form, be limited to those
situations where Congress itself determines that disclosure is
appropriate.
Second, and more fundamentally, the Act itself does not require
such a literal, "physical," approach to the definition of "agency
record." In a 1982 decision involving Exemption 7 of FOIA, 5 U.S.C.
? 552(b)(7), the Supreme Court considered the Act's use of the terms
"records," "documents," and "information." The issue in FBI v.
Abramson, supra, was "whether information contained in records com-
piled for law enforcement purposes loses that exempt status when it
is incorporated into records compiled for purposes other than law
enforcement." 456 U.S. at 618. The Court first noted that "dupli-
cates of original records. compiled for law enforcement purposes...
would not lose their exemption by being included" in a non-law-
enforcement compilation. Id. at 624. The Court then observed that
"in determining whether information in a requested record should be
released, the Act consistently focuses on the nature of the informa-
tion and the effects of disclosure." Id. at 626 (emphasis supplied).
Consequently, the Court held that "information initially contained
in a record made for law-enforcement purposes [remains exempted)
when that recorded information is reproduced or summarized in a
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? .
new document prepared for a non-law-enforcement purpose." Id at 631-32.4/
The decision in Abramson, with its emphasis on the contents,
and not the physical format of documents, does not permit this Court
to ignore the fact that the "contents of the information" contained
in the Rogovin Report and its duplicate are by definition the same.
Abramson suggests that if duplicates and even summaries of exempted
records are not subject to disclosure, then duplicates of congressional
records surely cannot be subject to FOIA's disclosure obligations.
Plaintiff simply draws too fine a line.
Nothing in the defini-
tion of "agency records," the congressional records doctrine, or in
Congress' directions to defendant here indicates that the distinction
between original and photocopy is of such great significance. Con-
sequently, the Court concludes that neither the Rogovin Report
original nor its duplicate are "agency records" subject to dis-
closure under FOIA.
Accordingly, defendant's motion for partial summary judgment
4/ Justice O'Connor in dissent distinguished between summaries and
verbatim reproductions-of exempted records. Noting that summaries
typically provide information about the individual who summarizes
as well as about the material summarized, Justice O'Connor aptly
contrasted the nature of duplicates: "Any significance a photocopy
may have derives exclusively from its content and not from the
process of its creation." She further observed that an equally plaus-
ible interpretation of the Act as the majority's would not protect
summaries, but would hold that a "photocopy, which can never convey
anything other than the entire contents of the original document,
should not be disclosed if the original is exempt from disclosure."
FBI v. Abramson, su ra, 456 U.S. at 641 n.12 (O'Connor, J., dissenting)
(emphases supplied).
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is granted and plaintiff's motion for partial summary judgment is
denied.
An appropriate order follows.
Dated: a1.w..ds~a.C
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FILED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEC ?. 01983
JAMES F. DAVEY, Clerk
CENTER FOR NATIONAL SECURITY STUDIES,)
et al.,
Plaintiffs, )
v. ) Civil Action No..80-1235
)
CENTRAL INTELLIGENCE AGENCY, )
et al.,
Defendants. )
Having considered the cross-motions for partial summary
judgment with respect to Count IV filed by plaintiffs and
defendants herein, the affidavits and memoranda filed in
support and in opposition thereto, and having heard oral
argument, it is this 2O' day of 1983
ORDERED that defendants' Motion For Partial Summary
Judgment As To Count IV is hereby granted; and it is
FURTHER ORDERED that plaintiffs' Cross-Motion For Partial
Summary Judgment As To Count IV is hereby denied.
UNIT STATES DISTRIC EDGE
Dated:
Approved For Release 2008/12/10: CIA-RDP89B00236R000200150021-3