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Only then would the court be in the possession of all the relevant evidence and have the full benefit of the Agency's expertise that is essential for de novo judicial review in national security cases under the FOIA, in which Congress directed the courts to give "substantial weight” to an agency's representations concerning the details of the classified status of a disputed record. And only by following such procedures and giving the "substantial weight” to the views of the Executive that is required by statute can a court accord the "utmost deference" that is required by the Constitution to be shown to the Executive's judgment regarding the need for secrecy in the conduct of the Nation's foreign relations and national defense. See United
States v. Nixon, 418 U.S. 683, 710 (1974). (Id.) The CIA did not seek review of the appeals court holding that the 35 Congressionally-related documents and the 11 documents prepared by the CIA in connection with the Congressional investigation were "agency records," not Congressional records outside the scope of the FOIA. It did state in a footnote, however, that:
Significant portions of these documents contain sensitive national security information or would, if released, reveal aspects of a congressional investigation the House of Representatives has not chosen to make public. The court of appeals remanded with express directions to the district court to consider the exemptions claimed by the CIA for the 11 CIA-generated documents (App. A, infra, 10a). It is unclear whether these express directions also apply to the 35 congressionally-generated documents. However that may be, we do not read the court of appeals' opinion to foreclose consideration of claims of exemption for these documents and thereby to require their immediate release. The court of appeals simply reversed the district court's order of summary judgment in favor of the CIA on another ground.
Moreover, the court of appeals has recognized that it would be especially inappropriate to foreclose the assertion of an exemption where necessary to protect national security information. See Jordan v. Department of Justice, 591 F.2d 753, 780 (D.C. Cir. 1978) (en banc); see also Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 985 n.80(3rd Cir. 1981); cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 165 n.30(1975). The court of appeals also has recognized that similar considerations apply when personal privacy is at stake. Ryan v. Department of Justice, 617 F.2d 781, 791-792 (D.C. Cir. 1980). We must assume that the court would show equal deference to congressionally generated documents that concern aspects of a congressional investigation that the House of Representatives has not chosen to make public (see United States Constitution,
Art. I, Section 5, Clause 3). (Id. 23-24, n. 17) On December 28, 1981, the Church filed a motion for a modificaion of the stay, noting that the petition for a writ of certiorari encompassed only the six national security documents and not the 35 Congressionally-related documents. Since a writ had not been filed with respect to the latter group of documents, the Church asked that the stay be dissolved insofar as they were concerned. The Chief Justice denied the motion two days later, and the Church subsequently refiled it with Justice Brennan on December 31, 1981. On January 18, 1982, the following order was entered by the Court:
97-581 0 - 82 - 26
The motion of respondent to modify the order entered by
tion for a writ of certiorari. On January 14, 1982, the Church filed its brief in opposition to the CIA's petition for a writ of certiorari, asserting that the petition should not be granted because the agency was asking the Court "to relieve it from the consequences of its remiss presentation of its case in the district court or to interpret the Freedom of Information Act in a manner which the Congress has purposefully rejected.” [Brief in Opposition, January 14, 1982, at 6] The brief summarized its argument as follows:
The district court thoroughly reviewed the CIA's claims of exemption, gave the full measure of deference to those claims and, in the interest of responsible de novo review, compared, first-hand, those claims with the documents at issue. Having examined the documents, the court held that, in minor aspect, the claims of exemption were overbroad. Subsequently, the court rejected the CIA's offer to upgrade its presentation in camera. These rulings were affirmed on appeal. Nothing in this situation creates a spe cial or important reason for granting the writ of certiorari. Petitioner's philosophical reservations as to the advisability of the de novo standard of review for national security claims and as to the usefulness of the adversary system in resolving those claims are inappropriate for determination here and invite legislative rather than judicial action. (Id.
at 17] On February 12, 1982, the CIA filed a reply brief in which it termed the Church's arguments "an effort to divert attention from the cavalier manner in which the courts below disposed of a case raising serious national security concerns.” [Reply Brief for Petitioners, February 12, 1982, at 2]
On February 18, 1982, the counsel for the Church filed a letter with the Court indicating that the Church was “permanently receding from its Freedom of Information Act request for the six documents” at issue in the petition for a writ of certiorari. (The letter noted, however, that the Church intended to pursue its re quest for the remaining documents involved in the litigation in the lower courts.)
On February 24, 1982, the Solicitor General, on behalf of the CIA, filed a letter with the Court responding to the Church's an
nouncement that it was abandoning the case. The Solicitor General asked the Court to nonetheless vacate the judgment of the court of appeals insofar as it affirmed the decision of the district court requiring the disclosure of the six documents and to remand that aspect of the case with directions to dismiss as moot. The letter concluded that the court of appeals decision "seriously departs from established principles of FOIA litigation and should not be permitted to stand as precedent to be invoked by other litigants seeking national security documents."
Status— The case is pending in the U.S. Supreme Court. The complete text of the December 23, 1980 opinion of the circuit court is printed in the “Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. Allen u. Federal Bureau of Investigation
Civil Action No. 81-1206 (D.D.C.) On May 22, 1981, Mark Allen, a private citizen researching the work of the House Select Committee on Assassinations (“Committee"), filed suit under the Freedom of Information Act (5 U.S.C. $$ 552 et seq.) against the Federal Bureau of Investigation ("FBI'), FBI Director William H. Webster, the Department of Justice, and U.S. Attorney General William French Smith. The plaintiff sought copies of "all correspondence or any records of any communication" between the Committee and the FBI “relating to the Select Committee's investigation into the assassination of President John F. Kennedy.” [Complaint for Injunctive Relief, May 22, 1981, at 2] Mr. Allen had requested access to these documents by letter to the FBI dated December 12, 1980 but his request had been denied and no determination had been made on his appeal of the denial to the Justice Department. In his complaint, the plaintiff also sought copies of "all records
records relating the investigation of the ... Committee into the murder of President John F. Kennedy not covered by my FOIA request of December 12, 1980." [Id. at 3] Mr. Allen had also previously requested these materials in a letter to the FBI dated April 6, 1981; this request was denied as well.
On June 26, 1981, the defendants filed their answer, asserting that: (1) the complaint failed to state a claim on which relief could be granted; (2) the court lacked jurisdiction over the subject matter of the complaint in that no agency record had been improperly withheld within the meaning of 5 Ŭ.S.C. $ 552; and (3) the named defendants-William French Smith, William H. Webster, and the FBI-were not proper party defendants to the action.
On July 20, 1981, the plaintiff filed a motion asking the court to permit him to make the Clerk of the House, Edmund L. Henshaw, a party defendant in the suit. In a memorandum accompanying the motion, the plaintiff noted that on April 17, 1981 the Clerk had written to him asserting that the "records sought by plaintiff are Congressional records and thus not subject to the Freedom of Information Act." (Memorandum of Points and Authorities, July 20, 1981, at 1) According to the memorandum, this letter indicated that the Clerk “clearly claims an interest in the subject of this litigation," and unless he was joined as a party defendant “his ability
to protect the Congressional interest may be impaired or impeded." [Id.)
At a status call held before Federal District Court Judge June L. Green on July 30, 1981, the counsel for the Clerk of the House indicated that the Clerk preferred not to be joined as a party defendant. Despite the plaintiff's objections, Judge Green stated from the bench that the court would not make the Clerk a party in the case, because, in her view, she did not have the authority to do so. Judge Green did agree, however, to have the Clerk file an amicus brief.
On September 16, 1981, the plaintiff served interrogatories, requests for admissions, and requests for production of documents on the Department of Justice. In the initial set of interrogatories, the plaintiff, inter alia, listed six categories of records and asked the defendant Executive branch agencies to identify those categories they deemed to be "Congressional records." 1 Responses to the plaintiff's discovery requests were completed on December 7, 1981, when the defendants filed their Further Answers to Plaintiff's First Set of Interrogatories, asserting that only documents in categories (E) (communications sent from the Select Committee to the FBI) and (F) (communications sent from the FBI to the Select Committee) were Congressional records. Several status calls were held during the next few weeks centering on the timing of the processing and release of the requested documents by the Department of Justice.
On January 22, 1982, the General Counsel to the Clerk of the House filed a motion to intervene as a defendant in the action on behalf of the Clerk. In a memorandum filed with the motion, the General Counsel noted that since the Justice Department was now contending that only two of the six categories of requested documents were Congressional records, "the Clerk believes it is necessary to intervene . . . for the limited purpose of asserting the privilege against compelled disclosure of non-public congressional re cords.” [Clerk's Memorandum of Points and Authorities in Support of Motion to Intervene, January 22, 1982, at 2-3] The memorandum argued that the Clerk should be permitted to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure.2 Alternatively, the memorandum maintained that permissive intervention should be granted.
Turning first to the question of “timeliness,” the General Coun. sel asserted that:
the Clerk was not in a position to intervene earlier, since he was not aware until December 8, 1981 that the Depart
1 The categories identified by the plaintiff were:
A FBI records sent to the House Select Committee;
F. Communications sent from the FBI to the Select Committee. 2 Rule 24(aX2) states:
Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
ment of Justice would defend only categories (E) and (F) as congressional records. Indeed, until the date on which the Department officially made known its position, it could be argued that the Clerk's interests were "adequately represented by existing parties”—a bar to invocation of Rule
24(aX2)... [Id. at 4] The Clerk's interest in the action was also "substantial,” according to the General Counsel, because the plaintiff was seeking records generated by a Congressional committee during the course of a legislative investigation, and the Clerk was the legal custodian of House records. Further, the memorandum continued:
The interest of the Clerk is "substantial” in another regard: he is uniquely capable, among the existing parties, of addressing issues which the court must consider in deciding whether these records are exempt from disclosure under FOIA, inter alia, applicability of the “constitutional protection of the legislative process under the Speech or Debate Clause, art. I, § 6, cl. 1.” Holy Spirit Ass'n. v. CIA,
[636 F.2d 838, 843) [Id. at 5] Finally, the General Counsel contended, the Clerk's interests were not adequately represented by the present parties and the disposition of the action in his absence would impair or impede his ability to protect those interests. The memorandum reasoned:
In practical terms, only a legislative branch officer can fully protect his interests in this action. Recently, this district has recognized that a legislative branch employee may intervene in an action to prohibit a litigant from indirectly inquiring via deposition of third parties, into their performance of legislative acts. In William P. Tavoulareas, et al. v. The Washington Post Co., et al., Civ. Action No. 80-3032 and William P. Tavoulareas v. Philip Piro, Action No. 80-2387 (issued Sept. 10, 1981) (Gasch, J.), the Court granted a motion to intervene by congressional employees for the purpose of raising their speech or debate clause rights when the defamation plaintiff sought to depose a witness and source for the committee for which they were employed. As Judge Gasch held “The inescapable conclusion to be drawn . . . is that the speech or debate clause prohibits the use of judicial process to inquire of a third party about the legislative acts of a legislator or his aides.” Memorandum at 21. (Exhibit 2) See also In Re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978). (Id. at 6-7] On January 29, 1982, the plaintiff filed a response to the Clerk's motion to intervene in the case, arguing that it should be denied because “the Clerk does not intend to confine his intervention to the agency records' issue but wishes to raise entirely new 'constitutional issues.” [Plaintiff's Response to Motion To Intervene By Clerk . . ., January 29, 1982, at 2] Pointing out that in his proposed answer the Clerk had raised as defenses a claim that release of the