United States Court of Appeals, District of Columbia Circuit
AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION, APPELLANTS
v.
CENTRAL INTELLIGENCE AGENCY, ET AL., APPELLEES
Argued
March 17, 2016.
Appeal
from the United States District Court for the District of
Columbia. (No. 1:13-cv-01870).
Hina
Shamsi argued the cause for appellants. With her on the
briefs was Arthur B. Spitzer.
Susanne
Peticolas was on the brief for amicus curiae Senator John D.
Rockefeller IV in support of appellants.
Thomas
G. Pulham, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Douglas
N. Letter and Matthew M. Collette, Attorneys.
Before:
TATEL and SRINIVASAN, Circuit Judges, and EDWARDS, Senior
Circuit Judge.
OPINION
Edwards,
Senior Circuit Judge:
The
Freedom of Information Act (" FOIA" or "
Act" ), subject to certain statutory exemptions,
requires federal agencies to make agency records available to
the public upon reasonable request. 5 U.S.C. §
552(a)(3)(A); see id. § 552(b)(1)-(9). Congress
is not an " agency" under FOIA and, therefore,
congressional documents are not subject to FOIA's
disclosure requirements. See id. § §
551(1)(A), 552(f). When Congress creates a document and then
shares it with a federal agency, the document does not become
an " agency record" subject to disclosure under
FOIA if " Congress [has] manifested a clear intent to
control the document." Judicial Watch, Inc. v. U.S.
Secret Serv., 726 F.3d 208, 221, 406 U.S.App.D.C. 440
(D.C. Cir. 2013) (quoting United We Stand Am., Inc. v.
IRS, 359 F.3d 595, 597, 360 U.S.App.D.C. 243 (D.C. Cir.
2004)).
The
dispute in this case concerns an attempt by the American
Civil Liberties Union and American Civil Liberties Union
Foundation (jointly, " Appellants" ) to invoke FOIA
to obtain a copy of a report authored by the Senate Select
Committee on Intelligence (" Committee" ). In 2009,
as a part of its oversight of the intelligence community, the
Senate Committee announced that it would conduct a
comprehensive review of the program of detention and
interrogation formerly run by the Central Intelligence Agency
(" CIA" ). Before the review commenced, the Senate
Committee and officials at the CIA negotiated arrangements to
deal with access to classified materials by Senators and
their staff, and agreed on rules regarding the
Committee's control over its work product. These
arrangements and rules were memorialized in a June 2, 2009,
letter (" June 2009 Letter" ) sent by the Chairman
and Vice Chairman of the Senate Committee to the CIA
Director, which provided, inter alia, that
Any . . . notes, documents, draft and final recommendations,
reports or other materials generated by Committee staff or
Members, are the property of the Committee . . . . These
documents remain congressional records in their entirety and
disposition and control over these records, even after the
completion of the Committee's review, lies exclusively
with the Committee. As such, these records are not CIA
records under the Freedom of Information Act or any other
law.
In
2014, after completing its review and receiving comments and
proposed edits from the Executive Branch, the Committee
produced a Committee Study of the CIA's Detention and
Interrogation Program. The end product included a
6,000-plus page investigative report (" Full
Report" ) and a 500-plus page Executive Summary. The
Committee transmitted copies of the final Full Report and
Executive Summary to the President, as well as to officials
at the CIA, Department of Defense, Department of Justice, and
Department of State (collectively, " Appellees" ).
The Executive Summary, but not the Full Report, was publicly
released by the Committee. The Committee made it clear that
it alone would decide if and when to publicly release the
Full Report. Appellants filed FOIA requests with Appellees
seeking disclosure of the Full Report. These requests were
denied on the ground that the Full Report is a
congressionally generated and controlled document that is not
subject to disclosure under FOIA. Appellants filed suit in
the District Court to compel disclosure, but their action was
dismissed by the court for lack of jurisdiction. Appellants
now appeal the decision of the District Court. We affirm.
Appellants'
principal claim is that the Senate Committee relinquished
control over the Full Report when it sent the document to the
President and officials at the Appellees' agencies in
December 2014. According to Appellants, when an agency has
been given possession of a document created by Congress, the
document is presumptively an agency record unless Congress
has clearly expressed its intent to control the document. In
Appellants' view, Appellees cannot establish a clear
assertion of congressional control with respect to the Full
Report because it was disseminated to Appellees without any
restrictions. We disagree. The June 2009 Letter manifests a
clear intent by the Senate Committee to maintain continuous
control over its work product, which includes the Full
Report. Therefore, the Full Report always has been a
congressional document subject to the control of the Senate
Committee. The mere transmission of the Full Report to agency
officials for their consideration and use within the
Executive Branch did not vitiate the command of the June 2009
Letter or constitute congressional relinquishment of control
over the document.
I.
Background
A.
The Senate Committee's Oversight Review and Production of
the Full Report
In
March 2009, the Senate Select Committee on Intelligence
announced that it would conduct an oversight review of the
CIA's highly controversial, but then-defunct, detention
and interrogation program. The review contemplated by the
Committee could not be completed unless Senators and their
staff had access to millions of pages of CIA documents
containing highly sensitive and classified information.
Because of the concerns regarding classified materials, the
members of the Committee and officials at the CIA negotiated
special arrangements to allow the Senate Committee to
undertake a comprehensive review while respecting the
President's constitutional authorities over classified
information. These arrangements were memorialized in the
aforementioned June 2, 2009, letter from the Senate Committee
Chairman and Vice Chairman to the CIA Director, setting forth
" procedures and understandings" governing the
Senate Committee's review.
The
letter indicated that the Senate Committee would conduct its
review of CIA records in a secure electronic reading room at
a CIA facility. The CIA agreed to create a segregated network
drive at the CIA facility where Senate personnel could
prepare and store their work product. And, at the insistence
of the Senate Committee, the letter also included clear terms
regarding control of the Senate Committee's work product.
On this point, the letter stated:
Any documents generated on the network drive referenced in
paragraph 5, as well as any other notes, documents, draft and
final recommendations, reports or other materials generated
by Committee staff or Members, are the property of the
Committee and will be kept at the Reading Room solely for
secure safekeeping and ease of reference. These documents
remain congressional records in their entirety and
disposition and control over these records, even after the
completion of the Committee's review, lies exclusively
with the Committee. As such, these records are not CIA
records under the Freedom of Information Act or any other
law. . . . If the CIA receives any request or demand for
access to these records from outside the CIA under the
Freedom of Information Act or any other authority, the CIA
will immediately notify the Committee and will respond to the
request or demand based upon the understanding that these are
congressional, not CIA, records.
Letter
from Dianne Feinstein, Chairman, Senate Select Comm. on
Intelligence, and Christopher S. Bond, Vice Chairman, Senate
Select Comm. on Intelligence, to Leon Panetta, Director, CIA
(June 2, 2009) (" June 2009 Letter" ), at ¶ 6,
Joint Appendix (" J.A." ) 93-94. Pursuant to the
terms of the June 2009 Letter, the Senate Committee drafted
initial versions of its report on the CIA's segregated
network drive. As the drafting process progressed, however,
the Senate Committee worked with the CIA to transfer portions
of the report from the segregated network drive to the Senate
Committee's secure facilities at the United States
Capitol. This arrangement allowed the Senate Committee to
complete the drafting process in its own workspace.
On
December 13, 2012, the Senate Committee approved the initial
draft of the Committee Study of the CIA's Detention
and Interrogation Program. This version of the
Committee's work included drafts of the 6,000-plus page
Full Report and the 500-plus page Executive Summary. The
Senate Committee sent the drafts to an approved list of
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