American Civil Liberties Union & American Civil Liberties Union Foundation v. Central Intelligence Agency

         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 ...