# Petition — Goland v. Central Intelligence Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0392%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 927 ## Text _— oo ee « * Supreme Cour, US, FILED JUN 26 1979 { { SE CLERK Teo - IN THE : Supreme Court of the United States OctoBER TERM, 1978 wv %8-1924 Susan D. GoLanp and Patricia B. Sxipmore, Petitioners, V. CENTRAL INTELLIGENCE AGENCY, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Of Counsel: JAMES H. WALLACE, JR. THomas C, ARTHUR Mark H. Lyncw ; : 1776 K Street, N.W. — Washington, D.C. 20006 Washington, D.C. 20003 Attorneys for Petitioners ALAN B. Morrison Davin C. VLADECK Suite 700 2000 P Street, N.W. Washington, D.C. 20036 June 26, 1979 Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C. TABLE OF CONTENTS I te ry is ee el hea a eke I Ne Fea ee ey ee cee eneceeesesbeees Statute and Federal Rule of Civil Procedure RSD a RR ai a Reasons for Granting the Writ................ b The Ability of Government Agencies to Create a Tenth Exemption to the Freedom of Information Act by Adopting Limited Definitions of "Agency Records" Poses a Funda- mental Question of the Scope of the Act Upon Which the Lower Courts have Rendered Conflicting Opinions..... ll. The Decision Below Raises the Sig- nificant and Recurring Issue Whether Basic Sarial Summary Judgment and Adver- Principles Apply to the Reso- lution of Factual Disputes in So- Called "National Security" Cases Arising under the Freedom of Infor- as FE EMO 8 or u's oa 4 Kk 4 0 0s be Conclusion 2a eS ee oe ee. oe 8 2 Oe 6 O96 2.06 82 64 GD OD 8 6 6 0-0 6 6 06 13 17 20 Appendix A, Opinion of the United States Court of Appeals for the District of Columbia Circuit, May 23, 1978.......... Appendix B, Opinion of the United States Court of Appeals for the District of Columbia Circuit, March 29, 1979........ Appendix C, Order of the United States Court of Appeals for the District of Columbia Circuit Denying Petitioner's Request for Rehearing en banc.......... Appendix D, Order and "Findings of Fact" of the United States District Court for the District of Columbia, OA, Bae eee Appendix E, Freedom of Information Act, Se SCENES 5 Ws, ao 6 ahd he oe bk O68 8 Appendix F, Rule 56, Federal Rules of eer Wa Pas 5 os MN Aww MOST SOW 0 Bi TABLE OF AUTHORITIES Cases: Adickes v. S.H. Kress & Co., . £S Me Fy. : errr rr ere 17 Bell v. United States, eR Oe wer Be ee oy ) eee * 18 Brandon v. Eckard, 569 F.2d 683 (D.C. Cir. 1977).......... 17-19 Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523 (S.D.N.Y.)........... 14 Forsham v. Califano, 587 F.2d 1128 (D.C. Cir. 1978), cert. granted, 47 U.S.L.W. 3740 (No. 78-1118, Ws WD bass nea nned sinned aswennes 15-16 Kissenger v. Reporters Committee for Free- dom of the = No. 78-1207, (D.C. Cir. 1978), cert. granted, 47 U.S.L.W. 3677 (Nos. 78-1088 and 78-1217, April 16, 1979)............ 15-16 Nichols v. United States, 325 F. Supp. 130 (D. Kan. 1971), eee aff'd, 460 F.2d 671 (10th Cir.), cert. Geried, 400.U.S. FGB CIG72) «occ cesses: 13-14 United States v. Diebold, Inc., i ae SAD Cs vad wok wenaedan kde 17 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. Geniad, 405 U.S. S77 CUSTA).. 006 2c cenes. 18 Weisburg v. United States Department of Justice, 543 F.2d 308 (D.C. Cir. 1976). .17-18 Weissman v. CIA, ES £ Bibs Ro «Mle. | 2% Wreeeerpeeeee 18 Statutes and Regulations: ee a oc As co kaversecakey 4 0h. 6, AO oii ino Sev css een ecs se 19 503.0. 5 GOO): 6 os Aedes 4 5 U.S.C. § 552(a)(6)(A)(ii)... 2... eee ee eee 5 Ee Set S| Rene ane ene aan ae 9,15 ES eo See Pe ial ee en ee 3 ge Me MRR IMEI iee tated eee glare nti 13 ee. 6 OS. oc a 6,8 Pewee, 6 ONS 6 aes 6,8 aE eae Federal Rules of Civil Procedure Miscellaneous: Final Report of the Select Committee to Study Government Operations With Respect to Intelligence Activities, S. Rep. 94-755, 94th Cong., 2d Sess. (1976) 10 Wright & Miller, Federal Practice and Procedure (1973) 2 SS 2S SG OR O26 8 OS BO 6 OO Ee 6 6 6 O66 Oe ,S@ 88 GF OH OB O24 8 8.6 dO 8468 0 @ In the SUPREME COURT OF THE UNITED STATES October Term, 1978 No. Susan D. Goland and Patricia B. Skidmore, Petitioners, Vv. Central Intelligence Agency, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Petitioners Goland and Skidmore pray for a writ of certiorari to review the opinions and judg- ments of the United States Court of Appeals for the District of Columbia Circuit entered in this case on May 23, 1978 and March 28, 1979. This Freedom of Information Act case arose out of Petitioners' efforts to obtain secret hearing transcripts and other non-public legislative his- -2- tory materials to delineate the proper scope of the Central Intelligence Agency's activities under its 1947 and 1949 organic statutes. Although Con- gress passed the FOIA to facilitate the uncovering of "secret law," the Court of Appeals in this case has provided recalcitrant agencies with a blue- print for thwarting similar attempts to discover secret legislative history. The Court of Appeals has permitted the CIA to withhold a secret hearing transcript on the un- substantiated theory that it is under exclusive Congressional "control," and is thus not a CIA "record" subject to the FOIA, although it has been in the CIA's possession for over 30 years. The Courc of Appeals also approved the use of summary judgment to foreclose Petitioners' at- tempts to challenge the CIA's self-serving affi- davits through discovery. It reaffirmed that holding even in the face of the CIA's belated dis- closure, after the first decision in its favor, that it had discovered five months earlier over 300 responsive documents, the existence of which these same affidavits had denied. This case thus presents important issues as to the scope and judicial administration of the Freedom of Information Act. - 3- OPINIONS BELOW The opinions of the Court of Appeals, not yet officially reported, are reprinted as Appen- dices A (pp. 1a-57a, infra) and B (pp. 59a-85a, infra). The order of the Court of Appeals denying Petitioners' suggestion for rehearing en banc is reprinted as Appendix C (pp. 87a-88a, infra). The District Court's unreported order aid acecinpaeyine "Findings of Fact" are re- printed as Appendix D (pp. 89a-92a, infra). JURISDICTION The judgment of the Court of Appeals was entered on May 23, 1978. Petitioners' timely peti- tion for rehearing, and suggestion for rehearing en banc, were denied on March 28, 1979. This petition for certiorari was filed within ninety days of that date. This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED IF May an agency define "records" subject to disclosure under the Freedom of Information Act to exclude a document in its possession on the ground that it was originally produced by a third party not subject to the Act? - 4- 2. May summary judgment be granted in favor of a government agency in a so-called "na- tional security" FOIA case, based solely on its self-serving affidavits, when the opposing party has been denied any opportunity to challenge those affidavits through discovery or other adver- sarial procedures? STATUTE AND FEDERAL RULE OF CIVIL PROCEDURE INVOLVED This case involves the Freedom of Informa- tion Act, 5 U.S.C. § 552 (Appendix E, pp. 93a- 95a, infra) and Rule 56, Fed. R. Civ. P. (Appen- dix F, pp. 97a-99a, infra). STATEMENT OF THE CASE This case involves Petitioners' FOIA request for secret, unpublished hearing transcripts and other documents concerning the legislative history of the CIA's organic statutes.! The CIA's tardy response* denied the existence of any secret 1 Petitioners' FOIA request was reprinted at page 12 of the Joint Appendix filed in the Court of Appeals (hereinafter cited as "JA __"). 2 Despite the 10-day deadline for responding to FOIA requests (5 U.S.C. § 552(a)(6)(A)(i)), the CIA responded to this request only after Peti- tioners had filed an administrative appeal (JA 20). Petitioners supplemented their appeal in light of the CIA's late response (JA 23). - 5 - legislative history materials except for a 1947 se- cret transcript ("Hearing Transcript"), which was alleged to be a “legislative document under the control of the House of Representatives," and of- fered to make available to Petitioners only a set of five published hearings and reports, totaling 65 pages (JA 22). The CIA never responded to Petitioners! administrative appeal, despite the statutory requirement that such appeals be an- swered within 20 working days.* Petitioners filed suit on January 28, 1976, seeking disclosure of the Hearing Transcript and any other unidentified responsive documents. Six weeks after the complaint had been filed, the CIA, alleging that it had "recently identified" two additional documents which "had not pre- viously been located," delivered to Petitioners’ counsel two statements used in hearings, one 35 U.S.C. § 552(a)(6)(A)(ii). The CIA had been similarly unresponsive to the predecessor FOIA request of Petitioners’ associate, Sara Holtz, for the CIA's secret legislative history. First, the CIA told Ms. Holtz that the only responsive documer*s were publicly available -in_ libraries (JA 15). When she pointed out in her appeal the existence of secret hearings for which no public transcripts were available, the CIA denied her appeal on the ground that "no records were de- nied to you," although admitting for the first time the existence of the Hearing Transcript (JA 16). - 6- of which ("the Hillenkoetter Statement") with ap- proximately 20-25% of the contents deleted (JA 129). Petitioners attempted to take discovery to challenge the CIA's withholding of the Hearing Transcript and the Hillenkoetter Statement, and the adequacy of the CIA's search for responsive documents (JA 27-38). Rather than responding to any of these discovery requests, the CIA moved for summary judgment based upon self- serving affidavits alleging (1) that it had made an adequate search for all responsive documents, (2) that the Hearing Transcript “appeared" to have been delivered to the CIA with a Congres- sional mandate to keep it secret although no ex- press instruction to that effect appeared on the document and the CIA affidavits provided no par- ticulars concerning the document's transfer to the CIA, and (3) that the Hearing Transcript and the withheld portions of the Hillenkoetter Statement were covered by Exemptions 1 and 3 of the FOIA, since both had been properly classified and their disclosure would reveal intelligence sources and methods in violation of 50 U.S.C. §§ 403(d)(3) and 403(g) (JA 75-82). In response, Petitioners filed two Rule 56(f) affidavits stating that, if their discovery were allowed, they would demonstrate the existence of ee -J- material issues of fact with respect to the allega- tions in the CIA's affidavits (JA 154-58, 176-80). In particular, Petitioners pointed out that the Final Report of the so-called "Church Committee"? cited numerous documents which appeared to be within the scope of their FOIA request (JA 178-80). Despite these obvious factual disputes, the District Court granted the CIA's summary judg- ment motion, issuing "Findings of Fact" that (1) the withheld portions of the Hillenkoetter Statement were properly classified, (2) the Hear- ing Transcript was “a Congressional document re- leased to the CIA for limited purposes only" because "it was marked 'Secret' by Congress and remains within the control of Congress," and (3) "the CIA has made a full search in good faith and... no _ further discovery is_ justified" (App. D at 91a-92a). The District Court made no ruling on Petitioners' request for attorneys' fees (id. ). The Court of Appeals affirmed by a 2-1 vote. Judge Wilkey's majority opinion held that the CIA's affidavits were adequate to establish as a matter of law that (1) the Hearing Transcript 4 Final Report of the Select Committee to Study Government Operations With Respect to Intelli- gence Activities, S. Rep. 94-755, 94th Cong., 2d Sess. (1976). = was not a CIA record, despite being in the CIA's possession for more than 30 years, on the theory that it was the "property" under the "control" of Congress (App. A_ at 7a-14a); (2) the Hillen- koetter Statement deletions were properly withheld under Exemption 3 because covered by 50 U.S.C. §§ 403(d)(3) and 403(g) (id. at 15a-23a);5 (3) the CIA had made an adequate search for respon- sive documents (id. at 23a-31a); and (4) Peti- tioners' were not entitled to attorneys' fees (id. at 32a-33a). Judge Bazelon dissented. First, he agreed with Petitioners "that the grant of summary judg- ment to the CIA was premature" in the absence of any opportunity for discovery or other adversar- ial testing of the CIA's ipse dixit allegations (id. at 35a-39a). Second, he disapproved the ma- jority's proposed "control/property" test for determining whether a responsive document was an “agency record" covered by the Act. Pointing out that “federal agencies regularly receive docu- ments created by non-agencies that obviously ° The District Court had relied instead on Exemp- tion 1 (App. D at 91a). The panei majority did not rule upon this ground for _ withholding (App. A at 16a). Judge Bazelon in his dissent Stated his opinion that the District Court erred in granting summary judgment on this ground in the absence of discovery (id. at 82a-83a). » § - become ‘agency records' in the ordinary course," he stated that the proper question under the FOIA for any document in an agency's possession was whether Congress had decided to exempt it under one of the nine specific exemptions in 5 U.S.C. § 552(b) (id. at 39a-47a).® By letters dated May 30 and 31, 1978, the CIA's Justice Department counsel informed Peti- tioners and the court that the CIA had informed him that it had discovered "a sizeable amount" of additional documents responsive to Petitioners' FOIA request. The letters did not specifiy either the extent of this discovery or its surrounding circumstances. On June 14, 1978, the CIA re- leased 30 of these documents. The _ following week, on June 23, 1978, the CIA released an additional 291 documents, and supplied the court with a letter from its associate general counsel to its Justice Department lawyers which attempted to 6 Judge Bazelon also observed that "even assum- ing the ‘'control/property' standard is the correct one, factual ambiguities in the record would pre- clude summary judgment" as "discovery is neces- sary specifically to determine whether Congress or the committee that conducted the hearings ever instructed the CIA to preserve the secrecy of the transcript, and, if so, for how long." The CIA itself had conceded that "the transcript itself con- tains no such express instruction, and... the source of the ‘'Secret' classification is unknown." (App. A at 46a). » 46 - explain the CIA's delay in disclosing the existence of these documents. This letter revealed that the documents had been found by the CIA's librarian, "who had some personal familiarity with the Goland case and thus recognized that some of the documents . might have some bearing on the Goland litiga- tion . . . ." (quoted at App. B at 62a). She "immediately (i.e., in late November or early December 1977) informed the General Counsel, the Deputy General Counsel and the undersigned" of her discovery (id.). Rather than immediately informing the court or the CIA's Justice Depart- ment attorneys, however, these three top CIA legal officers did nothing while their librarian took four months to examine and sort the docu- ments, and revealed the existence of these highly relevant documents only after the initial decision in the CIA's favor. (ld. at 62a-63a). In the meantime, Petitioners on June 6, 1978 had filed a timely petition for rehearing and sug- gestion for rehearing en banc, arguing that the majority decision was contrary to basic summary judgment principles and created a "tenth exemp- tion" by its misconstruction of the term "agency records." The CIA's March 30 and 31, 1978 letters were cited, but not heavily relied upon, in that petition, as the CIA had yet to detail the - 11 = extent of its discoveries or the circumstance of its non-disclosure. In response to the CIA's June 14 ietter, however, Petitioners on June 16, 1978 filed a mo- tion to summarily vacate the original panel deci- sion, as the CIA's disclosure of 30 responsive documents dramatically illustrated the error of resolving the case on the CIA's untested affi- davits. This motion was closely followed by the CIA's release of the other 291 documents, and its attempted explanation of its five-month delay in disclosing the existence of these highly relevant documents. On March 28, 1979, the Court of Appeals de- clined to rehear the case en banc, Judge Bazelon dissenting, and the original panel issued an opin- ion denying the petition for rehearing and the motion to summarily vacate the original decision. In a per curiam decision, the majority reaffirmed its initial decision. The majority stoutly main- tained that "the mere fact that additional docu- ments have been discovered does not impugn the accuracy of the [CIA] affidavits." (App. B at 65a). The majority stated that those affidavits had correctly stated that the CIA had made an adequate search, relying on the CIA's June 14 and 23 letters to hold that the CIA could not have found the newly-discovered documents in the course of a normal search (id. at 65a-66a). The - 12 - court then went on to mischaracterize the issue before it as whether it should reverse its prior decision on the basis of "newly discovered evi- dence," rather than whether its original decision was .now dramatically illustrated to be wrong under commonly accepted summary judgment prin- ciples. (Id. at 65a-66a). The majority § did reverse its prior denial of attorney's fees, re- manding the case to the District Court for a reconsideration of that issue. (ld. at 76a-77a). Once again, Judge Bazelon dissented, stating his belief "that both the disclosure of 321 addi- tional documents and the circumstances surround- ing their discovery cast serious doubt on the original disposition of this case." (ld. at 79a). He specifically dissented from the majority's factual finding that the original CIA affidavits had been accurate: "To my mind, this is a ques- tion of fact that cannot possibly be decided on the record before us." While the CIA's letter “representations may well be true. . . at this stage of the litigation they are simply ex_ parte representations." (ld. at 82a). Thus, the majority's extreme reluctance to permit plaintiffs to explore the factual basis of the CIA's assertions thus repeats the basic error of the original panel opinion. The majority again prematurely fore- closes plaintiffs' inquiry into the nature of the CIA's search in response to the FOIA request. (ld., footnote omitted). - 13 - REASONS FOR GRANTING THE WRIT |. THE ABILITY OF GOVERNMENT AGENCIES TO CREATE A TENTH EXEMPTION TO THE FREEDOM OF INFORMATION ACT BY ADOPT- ING LIMITED DEFINITIONS OF "AGENCY RECORDS" POSES A FUNDAMENTAL QUES- TION OF THE SCOPE OF THE ACT UPON WHICH THE LOWER COURTS HAVE REN- DERED CONFLICTING OPINIONS. The Freedom of Information Act contains no definition of "agency records" subject to the Act's disclosure provisions. This statutory deficiency will continue to encourage agencies to evade the Act by construing that term narrowly, thus en- gendering needless litigation unless this Court provides an authoritative definition. The lower courts have been hindered in FOIA litigation because of the Act's failure to define “agency records." E.g., Nichols v. United States, 325 F. Supp. 130, 134 (D. Kan. 1971), aff'd, 460 F.2d 671 (10th Cir.), cert. denied, 409 U.S. 966 (1972). Nevertheless, the court in Nichols and other lower courts have been forced to attempt to define the term in order to resolve litigation. Not surprisingly, a variety of conflicting definitions has resulted. Thus, for example, the Nichols court, after reviewing the terms of agency regulations, the definition of records in 44 U.S.C. § 3301 and - 14 - available case law, finally resorted to "a diction- ary of respected ancestry for a reasonably accu- rate meaning of the word" since "no better defini- tion of the term, 'record', is provided by legisla- tive enactment, executive order or controlling judicial determination . .. ." Nichols v. United States, supra, 325 F. Supp. at 135. Another dis- trict court has defined the term to include docu- ments owned by the government or "subject to substantial Government control or use." Ciba- Geigy Corp. v. Mathews, 428 F. Supp. 523, 529 (S.D.N.Y. 1977). The courts of appeals have been similarly confused. The Ninth Circuit has attempted a functional definition designed to serve the basic disclosure principles of the Act: documents which deal with the "structure, operation, and decision-making procedure of the various govern- mental agencies." SDC Development Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976). Various panels of the D.C. Circuit have taken in- consistent approaches. The panel majority in this case approved the CIA's definition which excludes even documents in the conceded possession of the agency for over 30 years, based on a test which turns on whether the document is under the "con- - 15 - trol" of or is the "property" of the agency or a third party not subject to the Act.? Another panel of the court, however, goes precisely the other way, stating that the "govern- ing principle is that only if a federal agency has created or obtained a record (or has a duty to obtain the record) in the course of doing its work, is there an agency record that can be de- manded under FOIA." Forsham v. Califano, 987 F.2d 1128, 1136 (D.C. Cir. 1978), cert. granted, 47 U.S.L.W. 3740 (No. 78-1118, May 14, 1979) (footnotes omitted). Acting on a similar definition, yet another panel of the D.C. Circuit even ordered former Secretary of State Kissinger to return documents to the State Department for processing under an FOIA request. Kissenger v. Reporters Committee for Freedom of the Press, ? The majority opinion was obviously motivated by the majority's avowed policy decision that Con- gress should be permitted to submit documents to agencies in secret (App. A at 8a-14a). This case does not present the issue whether Congress has power under the Constitution to use executive branch agencies as warehouses ffor its secret documents. Congress obviously has the power to pass a statute so providing, but has not done so. The issue here is whether, in the absence of any clear statement of Congressional intent, Congress intended for documents in the possession of an agency to be exempt from the FOIA even though not falling within one of the nine exemptions of 7 U.S.C. § S6et0). » % ~ No. 78-1207 (D.C. Cir. 1978), cert. granted, 47 U.S.L.W. 3677 (Nos. 78-1088 and 78-1217, April 16, 1979). As this court has recognized by granting certiorari in both Kissenger and Forsham, the question of the definition of "agency records" under the FOIA requires definitive resolution by this Court. Those cases alone, however, do not adequately present the issues posed by the Act's failure to define this term. Review of this case is also necessary if these issues are to be defini- tively resolved. In Forsham and Kissenger, the specific question presented is whether the FOIA applies to records which reside outside an agency covered by the Act, but are arguably within its control. In this case, the converse question is presented, that is, whether the FOIA applies to documents in the custody and possession of an agency, but arguably subject to property rights or control by a third party not subject to the Act. Finally, this case has great practical impor- tance. As Judge Bazelon noted, should the ma- jority's restrictive definition of "agency records" stand, the result wili be the creation of an extra-statutory "tenth exemption" which agencies can use to withhold otherwise disclosable docu- ments (App. A at 43a n.12). - 1/7- ll. THE DECISION BELOW RAISES THE SIGNIFI- CANT AND RECURRING ISSUE WHETHER BASIC SUMMARY JUDGMENT AND ADVER- SARIAL PRINCIPLES APPLY TO THE RESO- LUTION OF FACTUAL DISPUTES IN SO- CALLED "NATIONAL SECURITY" CASES ARISING UNDER THE FREEDOM OF INFOR- MATION ACT. Numerous decisions of this Court have estab- lished the black letter principle that summary judgment may not be granted unless the moving party establishes that there are no issues of ma- terial fact, even after all inferences from the record have been drawn in favor of the opposing party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-61 (1970); United States v. Dieboid, Inc., 369 U.S. 654, 655 (1962). See generally 10 Wright & Miller, Federal Practice and Procedure § 2727 (1973). It is also black letter law that Rule 56(f), Fed. R. Civ. P., entitles a diligent opposing party to defeat a summary judg- ment motion by means of an affidavit alleging that factual issues exist but that, without discovery, he cannot present verified facts in his opposition to the motion. Adickes v. S.H. Kress & Co., supra, 398 U.S. at 160-61. See generally Wright & Miller, supra, §§ 2740-41. In general, the lower courts have followed these elementary summary judgment principles in FOIA cases. See, e.g., Brandon v. Eckard, 569 - 18 - F.2d 683, 688-89 (D.C. Cir. 1977); Weisberg v. United States Dep't of Justice, 543 F.2d 308 (D.C. Cir. 1976). In addition, the lower courts have generally mandated other procedural re- quirements, such as the preparation of detailed indices of withheld documents, to overcome the barriers to full adversary proceedings which are inherent in FOIA litigation, where only one of the contending parties has actual knowledge of the contents of the disputed document. E.g., Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Yet in a disturbing number of so-called "na- tional security" cases arising under Exemptions 1 and 3, the lower courts have abandoned these fundamental principles, and resolved cases with- out any acversarial testing of the contents of agency affidavits by in camera inspection. or otherwise. E.g., Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977); Bell v. United States, 563 F.2d 484 (1st Cir. 1977). The majority opinion below is the epitome of this disturbing trend. Petitioners were given no opportunity to test the CIA affidavits by dis- covery, despite their vigorous attempts to do so and disturbing indications from the Church Com- mittee's report that the CIA affidavits were wrong. Instead, in flat violation of Rule 56(f), » Ho the District Court, and later the Court of Appeals, reached out to resolve the disputed fact issues in favor of the CIA, completely contrary to the general rule that all inferences are drawn in favor of the opposing party. Obviously, if such litigative procedures are to be countenanced, the requirement of the FOIA that the District Court conduct a de novo review (S U.S.C. § 552(a)(4)(B)) will be negated in so- called "national security" cases under Exemptions 1 and 3. Yet Congress amended the Act in 1974 with the express purpose of tightening up both Exemptions 1 and 3. In Exemption 1 cases, Con- gress required the district courts to conduct de novo review of allegedly classified materials to determine if their classification was valid on both procedural and substantive grounds. Congress amended Exemption 3 to limit it to statutes which specifically mandated withholding of specified documents or which contained specific criteria for agency withholding. Whether a document was covered by such a statute was to be subject to de novo judicial review. See Pub. L. No. 93-502 (Nov. 21, 1974); see also Brandon v. Eckard, supra, 569 F.2d at 688-89 & n.21. Resolving questions of the applicability of these two excep- tions on the CiA's untested say so, as the Court of Appeals has done here, negates the Concres- sional intent behind these amendments. - 20 - Accordingly, this case presents important questions under both Rule 56 and the 1974 FOIA Amendments. CONCLUSION For the above reasons, a writ of certiorari should issue to review the District of Columbia Circuit's May 23, 1978 and March 28, 1979 judg- ments and opinions. Respectfully submitted, James H. Wallace, Jr. Thomas C. Arthur Of Counsel: 1776 K Street, N.W. Washington, D.C. 20006 Mark H. Lynch (202) 857-5000 600 Pennsylvania Ave., S.E. Counsel for Petitioners Washington, D.C. 20003 Alan B. Morrison David C. Viadeck Suite 700 2000 P Street, N.W. -« Washington, D.C. 20036 June 26, 1979 APPENDIX la Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S. App. D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Comt of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-1800 SUSAN D. GOLAND AND PATRICIA B. SKIDMORE, APPELLANTS V. CENTRAL INTELLIGENCE AGENCY, ET AL. Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-0166) Argued 5 October 1977 | se eaterea < is date Decided 23 May 1978 — James H. Wallace, Jr. with whom Thomas C. Arthur and Mark H. Lynch were on the brief, for appellants. John Cordes, Attorney, Department of Justice with whom Earl J. Silbert, United States Attorney, Rex E. Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. 2a Lee, Assistant Attorney General, and Leonard Schaitman, Attorney, Department of Justice were on the brief, for appellee. Before: BAZELON, TAMM and WILKEY, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circuit Judge BAZELON. WILKEY, Circuit Judge: This case arises under the Freedom of Information Act (FOIA).* Plaintiffs Goland and Skidmore requested documents from the Central Intelligence Agency (CIA) relating to the legislative history of the Agency’s organic statutes. In this suit they challenge the thoroughness of the CIA’s search for responsive documents and the Agency’s refusal to give them certain admittedly responsive material it does possess. The district court granted summary judgment in favor of the CIA. We affirm. I. FACTUAL BACKGROUND The chronology of events must be elaborated in some detail. On 2 May 1975 Sara Holtz? filed an FOIA re- quest with the CIA, seeking access to “all records con- cerning the legislative history” of the National Security Act of 1947,° the CIA Act of 1949,‘ and two bills intro- duced into Congress in 1948 providing for the adminis- tration of the Agency.’ Specifically, Holtz requested 75 U.S.C. § 552 (1976). * Holtz is not a party to this suit. * Act of 26 July 1947, ch. 343, § 102, 61 Stat. 497 (presently codified at 50 U.S.C. § 403 (1970)). * Act of 20 June 1949, ch. 227, §§ 1-10, 63 Stat. 208 (pres- ently codified at 50 U.S.C. §§ 403a-403j ( 1970) ). * S. 2688, 80th Cong., 2d Sess. (1948) ; H.R. 5871, 80th Cong. 2d Sess. (1948). site 3a access to “all reports of the Committees of the House and Senate and the Conference Committee which re- ported on the bills, and any hearings which may have been held on these bills or related to the subject of the authority, organization and administration” of the CIA.° On 14 May the CIA responded to Holtz’ letter, ad- vising her that the documents she sought were Congres- sional materials which would be available in the Library of Congress or the Government Printing Office. On 20 May 1975 Holtz wrote the Agency a second letter, stat- ing her belief that hearings had been held on the bills she cited for which no transcripts were available in the Library of Congress, and requesting access to records of these hearings and to “any House, Senate or Con- ference Reports, besides those available in public libraries, that more fully explain the basis for the Committees’ actions on these bills.” * The Agency responded on 23 June 1975, informing Holtz that a search of its records had revealed that it possessed one document relating to the legislative history of the CIA’s organic statutes which was not publicly available, namely, a stenographic transcript of Hearings held before the House Committee on Expenditures in the Executive Departments on 27 June 1947 (hereinafter “Hearing Transcript”). The Agency stated, however, that the Hearing Transcript had been classified “Secret” by Congress and could be declassified only by that body; it suggested that Holtz request declassification and re- lease of the document from the House of Representatives. There were no further communications between Holtz and the CIA. On 20 October 1975 plaintiffs Goland and Skidmore notified the CIA that they, like Holtz, were “‘investigat- * Joint Appendix (J.A.) 12. 7 J.A. 14-15. 4a ing the authority, organization and administration” of the Agency, and requested “‘the documents requested by Ms. Holtz’ letters.”* Treating the CIA’s failure to re- spond within ten days as a denial of their request,’ plaintiffs on 20 November 1975 appealed that denial. On 26 November 1975 the CIA offered to send plaintiffs copies of five previously published hearings and reports, even though these documents were “generally available in the Library of Congress and various depository li- braries.” *° With respect to the Hearing Transcript, how- ever, the CIA reiterated its position that the Transcript was a “legislative document under the control of the House of Representatives” which was “classified ‘Secret’ ” and to which FOIA did not apply.” On 16 December 1975 Goland and Skidmore wrote the CIA to “elaborate on the basis of [their] appeal,” assert- ing that the Agency’s letter of 26 November failed to make clear whether the Transcript and the five pub- lished documents accounted for all the material they had requested. In addition, plaintiffs expanded the scope of their request to embrace not only the reports and hearings they had sought originally, but also any “ma- terials which may have been the basis for testimony at hearings” or “materials used by or submitted by the CIA or other Executive Branch sources which are in- 8 J.A. 18. * Under 5 U.S.C. § 552(a) (6) (A) (i) (1976), an agency must respond to an FOIA request within ten working days; under § 552(a) (6)(C), a requester is deemed to have ex- hausted administrative remedies if the agency fails to com- ply with this time limit. *° J.A. 22. These five documents (65 pages in all) were sent to plaintiffs on 12 January 1976. J.A. 78. 1 J.A. 22. 2 J.A. 23-24. 5a cluded in [unpublished] reports” on the cited bills.* When the CIA failed to respond to this supplemental appeal within 20 working days,” plaintiffs filed suit on 28 January 1976. On 10 March 1976 the CIA notified plaintiffs’ counsel that it had identified two additional documents responsive to plaintiffs’ FOIA request which “had not previously been located.” ** The first document was entitled “State- ment of Lt. Gen. Hoyt S. Vandenberg, Director of Central Intelligence,” delivered before the Senate Armed Services Committee on 29 April 1947. This document was released to plaintiffs in full. The second document was entitled “Statement of the Director of Central In- telligence [Hillenkoetter] Before the House Armed Serv- ices Committee [on] 8 April 1948” (hereinafter “Hillen- koetter Statement”). This document was released to plaintiffs with certain portions (about 20% of the total) deleted; the Agency explained that the deleted material was exempt from disclosure under FOIA. II. COURSE OF THE LITIGATION The complaint sought an injunction directing the CIA to make available for copying all “records requested in plaintiffs’ . . . letter” of 20 October 1975, a declaratory judgment holding the CIA’s allegedly restrictive definition of “agency records” “ invalid, and an award of attorneys’ fees. On 10 March 1976 plaintiffs filed interrogatories, a request for production of documents, and a notice of 18 J.A. 24, 25. * See 5 U.S.C. § 552 (a) (6) (A) (ii) & (C) (1976). 8 J.A. 129. eo Dh 7 32 C.F.R. § 1900.3(g) (1976). The definition has recently been amended. See 42 Fed. Reg. 24,049 (12 May 1977) (codi- fied at 32 C.F.R. § 1900.8(g) (1977)). 6a deposition to the CIA. Rather than submit to discovery, the CIA on 5 April 1976 filed a motion for summary judgment based on affidavits. The Agency contended that the Hearing Transcript was not an “agency record” but rather a Congressional document not subject to FOIA;* that both the Transcript and the deleted por- tions of the Hillenkoetter Statement were properly with- held under FOIA Exemption 8, relating to matters “spe- cifically exempted from disclosure by statute;’’® that both the Transcript and the deleted portions of the Hill- enkoetter Statement were properly withheld under FOIA Exemption 1, relating to matters “specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy ;” *° that the CIA’s search had been complete and there existed no other responsive documents; and that plaintiffs lacked standing to challenge the CIA’s defini- tion of “agency records” inasmuch as the Agency had not relied on that definition in processing their FOIA request. Plaintiffs responded to the motion principally on the grounds that discovery was needed to resolve disputed issues of fact. Judge Hart granted the CIA’s motion for summary judgment on 26 May 1976.*: He found that the Hearing Transcript was a Congressional document outside the ambit of FOIA, that the deleted portions of the Hillen- koetter Statement were properly withheld under FOIA Exemption 1, and that no further discovery was justified 18 Congress is not an “agency” under FOIA. See 5 U.S.C. § 551(1) (A) (1976). 5 U.S.C. § 552(b) (3) (1976). 205 U.S.C. §552(b) (1) (1976). These documents were classified “Secret” under Executive Order No. 11652, 3 C.F.R. 678 (1971-75 Compilation). *t Judge Hart’s decision, rendered from the bench, is printed at J.A. 187-90. 7a since the CIA had “made a full search in good faith.” * Judge Hart made no findings about plaintiffs’ standing to challenge the CIA’s definition of agency records or about their request for attorneys’ fees. We consider these issues in turn. III. ANALYSIS A. The Hearing Transcript. The FOIA requires that an agency make “agency records” available to the public upon reasonable request.** The Act does not define “records” or “agency records.” ** Plaintiffs argue that since the CIA is an “agency” its possession of the Hearing Transcript, without more, renders that document an “agency record” subject to disclosure absent specific exemption.** The CIA argues that possession is not enough; it points out that “agency,” as defined by the Administrative Procedure Act, “does not include (A) the Congress .. .,” ** and that the Hear- ing Transcript, regardless of whether it is a “record,” is not an “agency record” on the facts of this case.” 22 J.A. 190. *3 5 U.S.C. § 552(a) (3) & (4) (B) (1976). 24 See U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL’S MEMO- RANDUM ON THE PUBLIC INFORMATION SECTION OF THE AD- MINISTRATIVE PROCEDURE ACT 23 (1967) [hereinafter AT- TORNEY GENERAL’S FOIA MEMORANDUM]. *° Brief of Appellants at 40; J.A. 24. 265 U.S.C. § 551(1) (A) (1976). 27 The CIA also argues that if the Hearing Transcript were an agency record for purposes of § 552(a) (3), it would be exempt from disclosure under FOIA Exemptions 1 and 3. See p. 6 supra. Since we hold that the Hearing Transcript is a Congressional document, we do not consider these arguments. 8a The district court found that the Hearing Transcript was “released to the CIA for limited purposes as a reference document only” and that it “remain[ed] within the control of Congress;” ** the court concluded that the Transcript was in consequence a “Congressional docu- ment,” ** and not an “agency record” within the mean- ing of FOIA. We agree. At the outset, we reject plaintiffs’ argument that an agency’s possession of a document per se dictates that document’s status as an “agency record.” * We base our 28 J.A. 189. °° Td. 3°In support of this argument, plaintiffs cite 44 U.S.C.A. § 3301 (West Supp. 1977), an earlier version of which is quoted in the Attorney General’s FOIA Memorandum, supra note 24 at 23. Section 3301 defines ‘‘records” for purposes of the management, disposal, and archival preservation of Government documents by the Administrator of General Serv- ices; it states that “[a]s used in [chapter 33 of 44 U.S.C.], ‘records’ includes all... papers ... made or received by an agency of the United States Government . . . appropriate for preservation py that agency ... .” (emphasis added). This definition is hardly controlling here. In enacting legislation on management and disposal of Government records, Congress was concerned with preserving an “[a]ccurate and complete documentation of the policies and transactions of the Federal Government.” 44 U.S.C.A. § 2902(1) (West Supp. 1977). With this objective in mind, Congress might well regard the Hearing Transcript as a “record . . . appropriate for preser- vation” by the CIA, since the Transcript contains information regarding “basic elements of [the CIA’s] intelligence meth- odology” and details of the CIA’s “structure and disposition of functions.” Affidavit of CIA Legislative Counsel George L. Cary, J.A. 80 [hereinafter “Cary Affidavit’”]. The sole result of the Hearing Transcript’s being deemed an “agency record” under § 3301 by virtue of its receipt by the CIA is that the Transcript could not thereafter be destroyed except in con- formity with the procedure Congress prescribed—a result " eee | 2 atm 9a conclusion both on precedent and on policy. The prece- dent is the Tenth Circuit’s opinion in Cook v. Willing- plainly harmonious with Congress’ objectives. See 44 U.S.C. § 3314 (1970). Congress’ objectives in the FOIA, of course, were rather different. In the interests of secrecy, Congress exempted itself from the Act’s disclosure requirements; yet the result of the Hearing Transcript’s being deemed an “agency record” under § 552(a) (3) by virtue of its receipt by the CIA is that the Transcript’s release could be required, re- gardless of Congress’ wishes, unless the CIA could prove a specific exemption. Given this difference in result, we doubt Congress would agree that an “agency record” under 44 U.S.C. §3301 is an “agency record” under 5 U.S.C. § 552 (a) (8). Indeed, the two titles define “agency” differently. Compare 5 U.S.C. §551(1) (A) & (B) (1976) (“agency” excludes Congress and the federal courts) with 44 U.S.C.A. § 2901(13) (West Supp. 1977), cross-referring to 40 U.S.C. § 472(b) (1970) (“agency” includes not only executive agen- cies, but also “any establishment in the legislative or judicial branch,” with exceptions). Congress, in any event, has had ample opportunities to make the § 3301 definition of “records” applicable in § 552(a) (3) of FOIA, but has never done so. Cf. 44 U.S.C.A. § 2906(a) (3) (West Supp. 1977) (stating that under certain circumstances “records” under § 3301 shall be deemed records for purposes of 5 U.S.C. §552a). One recent commentator has stated that § 3301, although it con- tains the “only statutory definition of ‘record,’” is “an inappropriate answer to the definitional issue.” J.T. O’REILLY, FEDERAL INFORMATION DISCLOSURE, {| 5.03 n.1 (1977). Plaintiffs point out that the § 3301 definition of records was quoted in the Attorney General’s FOIA Memorandum, supra note 24 at 23. We do not see how this helps plaintiffs’ case. The Attorney General noted that the FOIA did not define “records,” then quoted the only available statutory definition of the term for what it was worth. He would have been remiss in not doing so. Yet his citation of the definition does not give it any greater extrapolative force than it inherently possesses. The Attorney General surely did not focus on the words “or received by,” which plaintiffs italicize and which are relevant to our case. Indeed, the Memorandum elsewhere suggests that an agency’s possession of a document does not per se render the document an “agency record” which the possessing agency must release. See note 46 infra. 10a ham,*' the only decision cited to us or discovered by our own research that is squarely on point. In Cook, a prisoner sought a copy of his presentence investigation report under FOIA. Although the document was physi- cally in the possession of the warden of a United States penitentiary, the Tenth Circuit held the place of pos- session not controlling. Noting that FOIA “does not apply to ‘the courts of the United States,’ ” * it concluded that the presentence report, “made for the use of the sentencing court,” thereafter “remains in the exclusive control of that court despite any joint utility it may eventually serve.” * In consequence, the judicial document was “not an agency report and [was] therefore not available to the public” under FOIA.“ Since the FOIA’s exemptions for Congress and the federal courts are im pari materia,** Cook is firm support for the conclusion that the Hearing Transcript, a Congressional document, is not “an agency record” here. This conclusion likewise finds firm support in policy. Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, long- 13 400 F.2d 885 (10th Cir. 1968) (per curiam), followed in United States v. Dingle, 546 F.2d 1878, 13881 (10th Cir. 1976). 82 400 F.2d at 885, citing 5 U.S.C. § 551(1) (B) (1976). ae (5 34 Jd. at 886. See United Broadcasting Co., 58 F.C.C.2d 1243, 1245 (1975) (FCC withheld probationary report because “probationary report, like a presentencing report, properly belongs to the Court for which it was made, and is therefore not capable of release under FOIA,” citing Cook). 85 See 5 U.S.C. § 551(1) (A) & (B) (1976). 36 U.S. Const. art. I, §5: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy... .” lla standing practice, and current Congressional rules.” Yet Congress exercises oversight authority over the var- ious federal agencies, and thus has an undoubted in- terest in exchanging documents with those agencies to facilitate their proper functioning in accordance with Congress’ originating intent.” If plaintiffs’ argument were accepted, Congress would be forced either to sur- render its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role. We decline to confront Congress with this dilemma absent a more convincing showing of self-abnegating Congres- sional intent. It may be assumed that plaintiffs could not easily win release of the Hearing Transcript from the House of Representatives; we will not permit them to do indirectly what they cannot do directly because of the fortuity of the Transcript’s location. For reasons both of precedent and policy, then, we believe that plaintiffs’ litmus test must be rejected. An agency’s possession of a document, standing alone, no more dicates that it is an “agency record” than the Congressional origins of a document, standing alone, dictate that it is not. Whether a Congressionally- generated document has become an agency record, rather, depends on whether under all the facts of the case the document has passed from the control of Congress and ** See Nixon V. Sirica, 487 F.2d 700, 772-73 (D.C. Cir. 1973) (Wilkey, J., dissenting). 6 E.g., H.R. Rule X1I(2) (k) (7), reprinted in H.R. Doc. No. 416, 93d Cong., 2d Sess. 427 (1975): “No evidence or testi- mony taken in executive session may be released or used in public sessions without the consent of the committee.” %° See Letter from Deputy Att’y Gen. Harold R. Tyler, Jr. to Hon. Bella S. Abzug, 19 Feb. 1976, quoted in J.A. 60 (Justice Dept. declined to reiease confidential House report lest “communications and consultations between coequal branches” of government be stifled). 12a become property subject to the free disposition of the agency with which the document resides. The document at issue here is a photostatic reproduc- tion of a stenographic transcript of a hearing held be- fore the House Committee on Expenditures in the Ex- ecutive Departments on 27 June 1947, entitled “H.R. 2319—Unification of the Armed Forces.” The Commit- tee was sitting in Executive Session. As the first order of business, the Chairman swore the stenographer and typist to secrecy.*° The transcript contains discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA’s structure and disposition of functions.‘ When received by the CIA, the Transcript bore the typewritten marking “Secret” on its interior cover page; this marking appears to have been appended at the time the Transcript was made.” The typewritten mark “Secret” appears again on the first page of the text of the Transcript. The CIA re- tains a copy of the Transcript for internal reference purposes only, to be used in conjunction with legislation concerning the Agency and its operations.“ Given these facts, we conclude that the Hearing Tran- script remains under the control of and continues to *° Cary Affidavit, supra note 30, J.A. 80. 41 J.A. 80-81. Because the CIA methodology and disposition of functions described in the Transcript are still operable, and because disclosure of the information could damage U.S. relations with friendly foreign governments, the CIA itself separately classified portions of the Transcript “Secret” pur- suant to Executive Order 11652. See note 20 supra. We do not consider whether this classification was proper. See note 27 supra. *2 Cary Affidavit, supra note 30, J.A. 80. *3 Td. at 79-80. 13a be the property of the House of Representatives. We base our conclusion both on the circumstances attending the document’s generation and the conditions attached to its possession by the CIA. The facts that the Com- mittee met in executive session “* and that the Transcript was denominated “Secret” plainly evidence a Congres- sional intent to maintain Congressional control over the document’s confidentiality.*© The fact that the CIA re- tains the Transcript solely for internal reference pur- poses indicates that the document is in no meaningful sense the property of the CIA; the Agency is not free to dispose of the Transcript as it wills, but holds the document, as it were, as a “trustee” for Congress. Under these circumstances, the decision to make the transcript “Cf. S. Rep. No. 5, 81st Cong., Ist Sess. (“First Annual Report of the Investigations Subcomm. of the Comm. on Ex- penditures in the Executive Departments”) 3 (1949): “Ex- ecutive hearings were .. . utilized in cases involving national security and in other instances when it was determined that public disclosure might be detrimental to the public interest.” ** Plaintiffs point out that the predecessor of current House Rule XI (2) (k) (7), supra note 38, governing secrecy of testi- mony taken in executive session, was not enacted until 1955. Brief at 41. See H.R. Doc. No. 416, supra note 38 at 427. It is clear, however, that the Rule simply formalized long- standing practice. Cf., e.g., S. REP. No. 5, supra note 44 at 3-4: “The subcommittee calls attention to the following rules of procedure which it adopted and which it has uniformly followed: ... (5) All testimony taken in executive hearings shall be secret and will not be released or used in public hear- ings without the approval of a majority of the subcommittee.” Even without the benefit of a general Rule, moreover, the transcript on its face manifests the indicia of Congress’ intent to maintain secrecy. Since it is Congress’ intent to maintain secrecy, and not Congress’ conformance with the procedural niceties of classification, that makes the Transcript a “Con- gressional document,” plaintiffs’ arguments that discovery is required as to the identity of the classifier, the date on which the document was classified, etc., are irrelevant in reaching a decision here. l4a public should be made by the originating body, not by the recipient agency.“ We hold, therefore, that the Hearing Transcript is not an “agency record” but a Congressional document to which FOIA does not apply.** We reach this con- clusion because we believe that on all the facts of the case Congress’ intent to retain control of the document is clear. Other cases will arise where this intent is less plain. We leave those cases for another day.** * Cf. ATTORNEY GENERAL’S FOIA MEMORANDUM, supra note 24 at 24: Where a record is requested which is of concern to more than one agency, the request should be referred to the agency whose interest in the record is paramount, and that agency should make the decision to disclose or with- hold .... Where a record requested from an agency 1s the exclusive concern of another agency, the request should be referred to that other agency. This rule was followed in Friendly Broadcasting Co., 55 F.C.C.2d 775, 775-76 (1975) (where FBI Reports were loaned to FCC solely for internal reference purposes, Reports were “property of the Federal Bureau of Investigation” and FBI, “as the originator of the Reports, . . . is the agency to which the request should be addressed” under FOIA). ‘7 Plaintiffs argue that even if the Transcript as a whole is a “Congressional document,” those portions originating with the CIA are producible as “ ‘reasonably segregable por- tion[s]’”’ with the “comments of members of Congress... . deleted if necessary as ‘Congressional materials.’” Brief at 42 & n.15, citing 5 U.S.C. §552(b) (last sentence) (1976). This argument is frivolous. Congress met in executive session, and marked the Transcript “Secret,” not only to protect its members’ questions, but to protect its witnesses’ answers. The cited provision from § 552(b), in any event, requires segregation and disclosure of non-exempt portions of agency records; since we hold that the Hearing Transcript is not an agency record, this provision has no application here. 48 In ascertaining whether a record in the possession of an agency is nonetheless a Congressional document, a court will 15a B. The Hillenkoetter Statement. The Hillenkoetter Statement is concededly an ‘agency record.” Although the entire 113-page document was originally classified “Secret,” the CIA has declassified of course accord due weight to the factors that influence us in this case, including (1) Congress’ clear intent to exempt Con- gressional documents from disclosure under FOIA; (2) Con- gress’ clear prerogative to prevent disclosure of its own confi- dential materiais; and (8) the danger of inhibiting the legis- lative and judicial branches from making their records avail- able to the executive branch. The dissent argues that this test, and the conclusion it pro- duces, prove too much: if the Hearing Transcript is a Con- gressional document, so also must the Hillenkoetter Statement be, a reductio our colleague evidently views as ad absurdum. See diss. op. at 10-11. Since the CIA has never contended that the Hillenkoetter Statement is a Congressional document —since, indeed, the CIA has acted inconsistently with any such contention by declassifying and releasing 80% of the document—we see no need to consider this question. We might note, however, that between the Hillenkoetter State- ment and the Hearing Transcript substantial differences lie. The former is a statement by a CIA official prepared by the CIA; we do not know the circumstances of its delivery in Con- gress, and it was classified “Secret,” not by Congress, but by the CIA. The latter is a transcript of colloquy between Con- gressmen and CIA witnesses; it was created in Congress under circumstances manifesting a plain Congressional desire for secrecy, and it initially was labeled “Secret,” not by the CIA, but by Congress. These distinctions are not, as our dissenting colleague says, a matter of paper and ink. The Transcript originated in Congress and remains a Congressional document because it bears clear indicia of a Congressional purpose to ensure secrecy ; the Statement originated in the CIA and bears no indicia of any Congressional purpose to ensure secrecy. It is these indicia of Congress’ continuing control that are dis- positive of a document’s “Congressional” status. The dissent argues that “ ‘[c]ontrol’ in this sense goes to the question whether a document is exempt from disclosure— not to whether it is an ‘agency record.’” Diss. op. at 8. [Continued] 16a approximately 80% of it and released those portions to plaintiffs. The Agency contends that the deleted portions are exempt from disclosure under FOIA Exemptions 1“ and 8. The district court held this material exempt, relying on Exemption 1. We agree, but base our hold- ing instead on Exemption 8, without in any way im- pugning the correctness of Judge Hart’s conclusion.” As originally enacted, FOIA provided that the Act’s disclosure requirements ‘“[do] not apply to matters that are—. . . (3) specifically exempted from disclosure by statute.” *' Two statutes are relevant to an Exemption 3 claim by the CIA. A proviso to 50 U.S.C. § 403(d) *® [Continued] This argument seems to mean that Congress can exercise “control” over secret documents that leave its possession only by enacting FOIA exemptions. We disagree. Congress has broad powers to keep its documents secret; when Congress transfers secret documents to an agency, for a limited pur- pose and on condition of secrecy, we see no reason to think it thereby waives its own prerogatives of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it. **The deleted portions of the Statement were classified “Secret” pursuant to Executive Order 11652 “in the interest of national defense or foreign policy.” See p. 6 & note 20 supra. *° Although “inquiries into the applicability of the two ex- emptions may tend to merge,” Phillippi v. CIA, 546 F.2d 1009, 1016 n.14 (D.C. Cir. 1976), Exemption 3 may of course be invoked independently of Exemption 1. See Weissman v. CIA, 565 F.2d 692, 698 (D.C. Cir. 1977); Marks v. CIA, 426 F. Supp. 708, 710-11 n.6 (D.D.C. 1977), appeal docketed, No. 77-1225 (D.C. Cir. 3 March 1977); J.T. O’REILLY, swpra note 30, at {| 13.07. Whether the deleted portions of the Hillen- koetter Statement were properly withheld is perhaps more clearly and briefly stated under Exemption 3 than under Ex- emption 1, hence we reach Judge Hart’s conclusion by a dif- ferent path. 5 U.S.C. § 552(b) (3) (1970). 17a (3) states that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” Section 403g of the same title provides that, “in order further to implement” this proviso, “the Agency shall be ex- empted from ... the provisions of any . . . law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” In Weissman vy. CIA," this Court squarely held that “both § 408(d) (3) and § 403g are precisely the type of statutes compre- hended by exemption (b) (3).”* This conclusion derived incontrovertible support from legislative history” and was unanimously adopted by other courts.°’ ** National Security Act of 1947, ch. 348, tit. I, § 102, 61 Stat. 497 (presently codified at 50 U.S.C. § 403(d) (3) (1970) ). “CIA Act of 1949, ch. 227, §7, 63 Stat. 211 (presently codified at 50 U.S.C. § 403g (1970) ). 1565 F.2d 692 (D.C. Cir. 1977). °° Id. at 694. See Phillippi Vv. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976). "© S. Rep. No. 93-854, 938d Cong., 2d Sess. 16 (1974) (“Intel- ligence Sources and Methods (50 U.S.C. § 408 (d) (3) and (g) ) .. . have been exempted from public inspection under section 552(b) (3)... .”); S. Rep. No. 98-1200, 98d Cong., 2d Sess. 12 (1974) (Conference Report) (same). H.g., Richardson v. Spahr, 416 F.Supp. 752, 753 (W.D. Pa.), aff'd, 547 F.2d 1163 (38d Cir. 1976) (§§ 403(d) (3) & 403g are both Exemption 3 statutes); Marks v. CIA, 426 F.Supp. 708, 710-11 (D.D.C. 1976), appeal docketed, No. 77-1225 (D.C. Cir. 3 March 1977) (same); Baker v. CIA, 425 F.Supp. 633, 635 (D.D.C. 1977), appeal docketed, No. 77-1228 (D.C. Cir. 3 March 1977) (same). 18a In 1976 Congress amended Exemption 3 in order to “eliminate the gap created in [FOIA]” by the Supreme Court’s decision in FAA Administrator v. Robertson.” Robertson held that a statute giving an agency broad discretion to withhold information “in the interest of the public” * qualified as an Exemption 3 statute. Congress amended Exemption 3 to provide that information shall be deemed specifically exempted from disclosure by statute only if such statute “(A) requires that the mat- ters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes par- ticular criteria for withholding or refers to particular types of matters to be withheld.” There is nothing on the face of amended Exemption 3, or in its legislative history, to suggest that Congress in 1976 intended to upset the well-established Exemption 3 status of the CIA’s protective statutes. Both § 403(d) (3) and § 403g “refer{] to particular types of matters to be withheld” —namely, information respecting intelligence sources and methods. Rep. Abzug, the amendment’s primary sponsor in the House, explicitly stated on the floor that § 403g °° H.R. Rep. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23 (1976), citing 422 U.S. 255 (1975). The revision in Ex- emption 3 represented a conforming amendment to 5 U.S.C. § 552b(c) (3) (1976), part of the Government in the Sun- shine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1976). 5° Robertson involved § 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504 (1970), which provides in pertinent part: “Whenever [any person objects to public disclosure of information received by the FAA], the Board or Adminis- trator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such per- son and is not required in the interest of the public.” 6 Act of 13 Sept. 1976, Pub. L. No. 94-409, § 5(b), 90 Stat. 1247 (presently codified at 5 U.S.C. § 552(b) (3) (1976) ). The amendment became effective 12 March 1977, 180 days after its enactment. See Pub. L. No. 94-409, § 6. 19a was one of the statutes intended to qualify under the new Exemption 3." The only courts to consider the issue have held that the amendment left the Exemption 3 status of §§403(d)(3) and 403g unimpaired.” Scholarly commentators have reached the same con- clusion. 61 122 Cong. Rec. H9260 (daily ed. 31 Aug. 1976): I have been asked whether 50 U.S.C. [§]4038g, a statute relating to CIA exemption from laws such as the Sunshine Act and the Freedom of Information Act, comes within the third exemption as recommended by the conference. I have examined section 403g and believe that it does come within the exemption. The legislative history cites, by way of example, in addition to the statute involved in Robertson, supra note 59, several statutes that would not qualify under amended Exemption 3. See H.R. REp. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23 (1976), citing 18 U.S.C. § 1905 (1970); S. Rep. No. 94-1178, 94th Cong., 2d Sess. 14 (1976) (Conference Report), citing 42 U.S.C. § 1806 (Supp. V 1975). These statutes are of the oceanic variety involved in Robertson and are in marked contrast to the CIA statutes involved here. 42 U.S.C. § 1306 provides that no disclosure of any information obtained at any time by or from the Departments of HEW or Labor shall be made except as relevant regulations prescribe. 18 U.S.C. § 1905 prohibits “[d]Jisclosure of confidential information generally” by any officer or employee of the United States “‘in any manner or to any extent not authorized by law.” 82 Fonda Vv. CIA, 484 F.Supp. 498, 503-04 & n.6 (D.D.C. 1977), appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977); Hayden v. CIA, No. 76-284, slip op. at 3-4 (D.D.C. 15 Apr. 1977), appeal docketed, No. 77-1894 (D.C. Cir. 30 Sept. 1977). 68 See J. T. O'REILLY, supra note 30, at § 13.07 (“manda- tory” nature of CIA statuces “bars disclosure under either the original or revised versions of exemption (b) (3)”) ; Note, The Effect of the 1976 Amendment to Exemption Three of the Freedom of Information Act, 76 CoLUM. L.REv. 1029, 1044 n.91 (1976) (§ 403g qualifies under revised Exemption 3 be- cause it specifies the “particular types of matters to be with- held’). 20a Having decided that § 403(d) (3) and § 403g remain qualifying statutes under amended Exemption 3, we must determine whether the deleted portions of the Hillenkoetter Statement fall within these statutes’ pro- tective compass. A court may be able to make such a deter- mination on the basis of affidavits, without the need for discovery or in camera inspection.“ Exemption 3 differs from other FOIA exemptions in that its applicability de- depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute’s coverage.® °* Congress has instructed the courts to accord “substantial weight” to agency affidavits in national security cases. S. REP. No. 93-1200, 98d Cong., 2d Sess. 12 (1974) (Conference Re- port) ; 120 Cong. Rec. 36,870 (1974) (remarks of Sen. Mus- kie) ; Weissman v. CIA, 565 F.2d 692, 697 n.10 (D.C. Cir. 1977). A court has discretion to conduct in camera inspection under 5 U.S.C. § 552(a) (4) (B) (1976), but the legislative history makes clear that in camera inspection should be ordered only after an agency has been given “the oppor- tunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure.” S. Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974) (Conference Report). The description contained in the affidavits must be sufficiently detailed to show that the contested matter “‘logi- cally falls into the category of the exemption indicated.” Weiss- man, 565 F.2d at 697. 65 See EPA v. Mink, 410 U.S. 78, 95 n.* (1973) (Stewart, J., concurring) (under Exemption 3 “the only ‘matter’ to be determined in a district court’s de novo inquiry is the factual existence of [a relevant] statute, regardless of how unwise, self-protective, or inadvertent the enactment might be’); J.T. O'REILLY, supra note 30, at § 13.07. In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we noted the need of techniques to test for the presence in a withheld document of segregable, nonexempt matter, lest an agency be able to “sweep[] disclosable material under a blanket allegation of exemption.” Jd. at 827 n.21. In this case, the need for discovery or in camera inspection to 2la In this case, the issue for decision is whether the CIA has shown by affidavit that release of the Hillen- koetter Statement in its entirety would reveal “intelli- gence sources and methods,” e.g., by revealing the “or- ganization” or “functions” of CIA personnel. According to an affidavit submitted by CIA Legislative Counsel George L. Cary, the deleted portions of the Hillenkoetter Statement contain detailed descriptions of (1) “intelli- gence collection and operational devices . . . still utilized’; (2) “methods of procurement and supply . . . unique to the Intelligence Community” which “are currently uti- lized”; (3) “basie concepts of intelligence methodology” of which “the essential elements remain viable’; (4) “specific clandestine intelligence operations,” including the “names [of] the foreign countries involved”; and (5) “certain intelligence methodologies of a friendly foreign government.” This affidavit has not been challenged. It demonstrates, in nonconclusory and detailed fashion,® that the deleted material describes “intelligence . . methods,” including the “functions” and “organization” of CIA personnel.” We hold, therefore, that the deleted test for the presence of segregable, non-exempt material is considerably diminished: the CIA’s claims of exemption are by no means “blanket” or “sweeping,” and the Agency has already segregated and released 80% of the Hillenkoetter Statement to plaintiffs. °° See Vaughn V. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). * Section 403g does not of course license the Agency “to refuse to provide any information at all about anything it does.” Philiippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976). In this case, disclosure of the “personnel” material at issue would lead to disclosure of intelligence sources and meth- ods. But see Baker v. CIA, 425 F. Supp. 633, 635-36 (D.D.C. 1977), appeal pending, No. 77-1228 (D.C. Cir. 1978) (§ 403¢ personnel matter exempt under Exemption 8 even absent 22a portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 3. The dissent would deny summary judgment on the Exemption 3 status of the Hillenkoetter Statement be- cause the CIA did not furnish a Vaughn v. Rosen index of that document. This argument exalts from over substance. Vaughn involved a request for numerous docu- ments running to “many hundreds of pages,” and the Government made a blanket claim that “the documents, as a whole, [were] exempt under three distinct exemp- tions.” °° We found it “preposterous to contend that all of the information [was] equally exempt under all of the alleged exemptions,” and found “an adequate indexing system” necessary owing to our “inability to determine which exemptions appl[ied] to what portions of the in- formation.” * The present case involves 23 pages of deletions from one document. The CIA’s affidavit lists the deletions; provides a “relatively detailed analysis” ” of the material deleted; makes clear which exemptions are claimed for the deletions (Exemptions 1 & 3); and explains why the deleted material fits within the exemp- tions claimed (i.e., how the deletions relate to “national security” and “intelligence sources and methods”). The proof that disclosure would in fact compromise intelligence sources and methods). 68 See diss. op. at 1-3 & 18-20, citing 484 F.2d 820, 826-28 (D.C. Cir. 1978), cert. denied, 415 U.S. 977 (1974). 6° See 484 F.2d at 825, 827. 70 Td. at 827-28, 827 n.22. 717d. at 826. See Maroscia v. Levi, 569 F.2d 1000, 1003 (7th Cir. 1977) (per curiam) (upholding summary judgment on Exemption 1 status of CIA document, without in camera inspection, on basis of affidavit describing document “in some detail, indicating the circumstances and the sensitivity of the information,” and explaining “[t]he potential harm resulting from disclosure of [the] document’). 23a CIA’s jusitifications, we think, could not have been much more detailed without “compromis[ing] the secret nature of the information.” * Although the Agency did not tender its analysis in the form of an “index,” there- fore, it satisfied the “detailed justification,” “specificity,” and “separation” requirements whose satisfaction the Vaughn index was meant to ensure. Although we do not retreat in the least from our belief that an index is of great assistance to requesters and courts in ap- propriate cases, common sense suggests that an index was unnecessary for the 23 pages that were so specifi- cally described and justified here. C. The Thoroughness of the CIA’s Search for Re- sponsive Documents The CIA asserts that exhaustive searches of its files have succeeded in locating eight, and only eight, docu- ments that are responsive to plaintiffs’ FOIA request.” Plaintiffs contend that discovery is needed to test whether the CIA’s search was complete. The district court awarded summary judgment in favor of the CIA, find- ing that “the CIA ha[d] made a full search in good faith and that no further discovery [was] justified.” ™ We agree. In order to prevail on an FOIA motion for summary judgment, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt 7 Vaughn V. Rosen, 484 F.2d at 826-27. 7s These documents are the five published hearings (released in full), the Vandenberg Statement (released in full), the Hillenkoetter Statement (withheld in part), and the Hearing Transcript (withheld in full). See pp. 4-5 supra. ™ J.A. 190. 24a from the Act’s inspection requirements.” * In determin- ing whether an agency has met this burden of proof, the trial judge may rely on affidavits. Congress has instructed the courts to accord “substantial weight” to agency affidavits in national security cases,” and these affidavits are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt. The agency’s affidavits, naturally, must be “relatively detailed” and nonconclusory ” and must be submitted in good faith. But if these requirements are met, the dis- trict judge has discretion to forgo discovery and award summary judgment on the basis of affidavits.” In support of its motion for summary judgment, the CIA submitted affidavits executed by Gene F. Wilson, the Agency’s Information and Privacy Coordinator. Wil- *® National Cable Television Ass’n, Inc. V. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973). 6S. REP. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Con- ference Report); 120 Cong. Rec. 36,870 (1974) (remarks of Sen. Muskie). See EPA v. Mink, 410 U.S. 73, 93 (1973). * Vaughn Vv. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). ** See Nolen Vv. Rumsfeld, 5385 F.2d 890, 891-92 (5th Cir. 1976) (granting summary judgment upon agency’s representa- tions “in candor and in good faith” that all responsive docu- ments were made available to plaintiff); Association of Nat'l Advertisers, Inc. v. FTC, 38 Ad.L.2d 6438, 644 (D.D.C. 1 April 1976) (where record indicates that agency search was “reasonably thorough,” discovery may be limited by court; to justify discovery where FTC “has already stated under oath that the search was Commission-wide and complete, ... [p]laintiff must demonstrate some substantial discrepancy between the defendants’ actions and words... .’); Exxon Corp. Vv. FTC, 384 F.Supp. 755, 759-60 (D.D.C. 1974), remanded, 527 F.2d 1386 (D.C. Cir. 1976), dismissed, No. 73-1928 (D.D.C. 28 Feb. 1977) (limiting discovery where affidavits demonstrated adequacy of search). : ba * ‘ x) 25a son stated that in response to plaintiffs’ initial request for “legislative history” he “caused a search to be made for all printed hearings, transcripts of hearings, [and] printed reports issued by Committees of the House, Com- mittees of the Senate or Conference Committees.” This search produced five published reports and the Hearing Transcript. Subsequently, plaintiffs expanded their re- quest to include all documents “which may have been used to prepare for Congressional testimony.” * Wilson then conducted a “further exhaustive search” for “copies of prepared testimony or statements presented in re- sponse to congressional consideration of the legislation” cited by plaintiffs." In this search, the CIA “interpreted [plaintiffs’] request broadly enough to ensure that [it] would locate all documents within the scope of the re- quest,” and “searched and reviewed all files which might contain [responsive] documents.” * This search produced the Vandenberg and Hillenkoetter Statements, but “failed to locate any additional records which could be con- sidered responsive to plaintiffs’ request.” ** Since the CIA has no indices or compendiums identifying records as “preparatory documents for congressional testimony,” any additional records of this description, if they exist, could be found only by “a page-by-page search” through the ‘‘84,000 cubic feet of documents in the [CIA] Records Center.” ** Even if such a page-by-page search were undertaken, it would be “impossible to determine which documents, if any, were in fact used to prepare for 79 J.A. 174. 8° J.A. 106. See pp. 4-5 supra. 81 J.A. 78, 174. 82 J.A. 78. 83 J.A. 174. ¢ J.A. 175. 26a congressional testimony on the legislation cited by plain- an We think that Wilson’s sworn affidavits on their face are plainly adequate to demonstrate the thoroughness of the CIA’s search for responsive documents. The af- fidavits give detailed descriptions of the searches under- taken, and a detailed explanation of why further searches would be unreasonably burdensome. Plaintiffs argue, however, that even if Wilson’s affidavits are otherwise sufficient to support summary judgment in favor of the CIA, discovery is required here because there is reason to doubt the Agency’s good faith. First, plaintiffs note that hearings occurred on the CIA’s enabling statutes for which no published tran- scripts exist, and argue that unpublished transcripts of these hearings, as well as CIA back-up documents prepared for use at these hearings, “must exist.” * Al- though appeals to common sense are not altogether to be condemned, plaintiffs’ argument is unpersuasive here. Even if we assume that the documents plaintiffs posit were created, there is no reason to believe that the docu- ments, thirty years later, still exist, or, if they exist, that they are in the possession of the CIA. Moreover, even if the documents do exist and the CIA does have them, the Agency’s good faith would not be impugned unless there were some reason to believe that the sup- posed documents could be located without an unreason- ably burdensome search. It is well established that an agency is not “required to reorganize [its] files in re- sponse to [a plaintiff’s] request in the form in which it was made,” * and that if an agency has not previcusly 5 Id. *° J.A. 110 (emphasis original). See Brief of Appellants at 26-27. ** Irons V. Schuyler, 465 F.2d 608, 615 (D.C. Cir.), cert. denied, 409 U.S. 1076 (1972). 27a segregated the requested class of records production may be required only “where the agency [can] identify that material with reasonable effort.” ** Wilson’s affidavits plainly show that the effort required to locate the hypo- thesized “back-up” documents would be unreasonable here. Second, plaintiffs argue that the Church Committee Report * refers to several documents that “appear to be within the scope of plaintiffs’ FOIA request . . ., and copies of which could reasonably be expected to be in the possession of the CIA, but which defendants have neither identified or produced ....”” This argument is similarly unpersuasive. In their expanded request for “legislative history,” plaintiffs sought access to Congres- sional reports and hearings on specific bills, and CIA materials that may have been “the basis for testimony at hearings” or “included in . . . reports” on those bills. Fifteen of the 17 documents plaintiffs cite from the Church Committee Report lie unmistakably outside the scope of their FOIA request.” The two remaining docu- 88 National Cable Television Ass’n, Inc. v. FCC, 479 F.2d 183, 192 (D.C. Cir. 1973). See H.R. REP. No. 93-876, 93d Cong., 2d Sess. 5-6 (1974) (description of records requested must enable “a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort’). 8° Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activi- ties, S. Rep. No. 94-755, book 1, 94th Cong., 2d Sess. (1976) [hereinafter “(Church Committee Report” or “Report’’]. 9 J.A. 178. 1 In their Brief at 21-23 n.7, plaintiffs refer to the follow- ing documents: (a) Two memoranda from Wm. J. Donovan to the Presi- dent, dated 1941 and 1944 (cited in Report at 481 n.24 & 482 n.28). These documents antedate by at least three years the 28a ments are transcripts of Congressional hearings in ex~ ecutive session.** In his affidavit, Wil: on stated that these documents, “if they exist, are not held by the [CIA].” ” legislation cited by plaintiffs; neither memorandum discusses any legislation whatever, nor was either prepared for testi- mony on legislation. See Wilson Affidavit, J.A. 183. (b) Three memoranda from the CIA General Counsel to the Director, dated 1947-49 (cited in Report, e.g., at 132 n.19, 72 n.7 & 492 n.70). These documents are internal CIA memo- randa which were not prepared for testimony on the cited legislation and were in no way used in the legislative process. See Wilson Affidavit, J.A. 183. (c) Three transcripts of Congressional testimony, dated 1975 (cited in Report, e.g., at 141 n.1, 1383 n.27 & 483 n.32). These documents postdate by 26 years the legislation cited by plaintiffs; the testimony was not given in hearings on that legislation. (d) Three internal CIA memoranda, dated 1961-74, and one memorandum prepared by the Justice Dept., dated 1962 (cited in Report, e.g., at 128 n. la, 1383 n.25, 478 n.10 & 133 n.26). These documents postdate by 13 years the legislation cited by plaintiffs; none of the memoranda was prepared for testimony on that legislation. See Wilson Affidavit, J.A. 183. (e) Three draft legislative histories of the CIA prepared by the CIA Legislative Counsel’s Office, dated 1967 (cited in Report, e.g., at 71 n.5 & 480 n.19). These documents postdate by 18 years the legislation cited by plaintiffs; none constitutes a report or hearings on that legislation and none was prepared for testimony on that legislation. See Wilson Affidavit, J.A. 183. * Hearings before the Senate Armed Services Comm. on S. 758 (1947), Hearings before the House Comm. on Expendi- tures in the Executive Departments on H. R. 2139 (1947) (cited in Report, e.g., at 72 n.6). The Hearing Transcript identified by the CIA contains some of the testimony taken at the House hearings. Plaintiffs seek, and the CIA denies pos- session of, transcripts of the remainder of the testimony taken at those hearings. 8 J.A. 183. 29a Since the transcripts are Congressional materials, and since there is no indication in the Church Committee Report that the transcripts were received from or re- turned to the CIA,“ there is no reason to question the good faith of Wilson’s asseveration. Third, plaintiffs argue that the CIA’s “pattern of obfuscation and delay” in dealing with them signals the Agency’s mala fides. The Agency, they say, first de- nied having any responsive documents, then found some, then found some more: these “inconsistent positions” and this piecemeal disclosure are said to imply bad faith. We take a different view of the facts. Sara Holtz originally requested “legislative history,” defined as Congressional hearings and reports; the CIA not un- naturally directed her to the Library of Congress. When Holtz replied that she wanted unpublished hearings and reports, the CIA identified the Hearing Transcript. When ** The Church Committee Report cites only two documents that are said to be “‘on file at the CIA.” The first is the “State- ment of the Director of Central Intelligence { Hillenkoetter] Before the House Armed Services Committee [on] 8 April 1948” (cited in Report at 494 n.74). This is the “Hillen- koetter Statement” which the CIA identified and for the most part released. The second is so-called “Testimony of Gen. Hoyt S. Vandenberg before the House Armed Services Com- mittee Hearing on H. R. 5871, 4/8/48” (cited in Report at 495 n.80). The CIA at oral argument denied possession of this document. We believe that the document in all probability does not exist. According to the Congressional Record Daily Digest, the only CIA officials to testify on H. R. 5871 before the House Armed Services Committee on 8 April 1948 were Hillenkoetter and Walter Pforzheimer. 94 Cong. Rec. D242 (1948). The error in the Church Committee Report seems easily explicable. The transcript of Hillenkoetter’s 8 April 1948 testimony was entitled simply “Statement of the Director of Central Intelligence.” Hillenkoctter was Director in 1948, and Vandenberg was Director in 1947. Apparently, the report wrongly attributed the 8 April 1948 statement of the un- named CIA Director to Hillenkoetter’s predecessor. 30a Goland and Skidmore said that they wanted not only hearings and reports, but Executive Branch back-up documents, the CIA identified the Vandenberg and Hillen- koetter Statements. The Agency’s “piecemeal” pattern of disclosure followed faithfully the piecemeal pattern of requests, and thus here indicated, if anything, good faith rather than bad; indeed, this Court held as much in Weissman v. CIA. The Agency’s responses were not always timely; but in view of the well-publicized prob- lems created by the statute’s 10- and 20-day time limits for processing FOIA requests and appeals,” the CIA’s delay alone cannot be said to indicate an absence of good faith. The dissent, while not seriously questioning the CIA’s good faith, says that discovery is needed in any event to ascertain whether the CIA personnel conducting the search used an “underinclusive” definition of “legislative history.” *" We disagree. The CIA personnel conducting the search evidently used the definition of “legislative history” that plaintiffs gave them, namely, “hearings, reports, and Executive Branch back-up documents.” That this is so is suggested by the fact that the CIA’s search °° 565 F.2d at 698 (footnote omitted) : The CIA dealt with the instant request in a conscien- tious manner. It disclosed much material, it released additional material as the result of an administrative ap- peal, and it came forward with newly discovered docu- ments as located. Agency documents have been released to plaintiff-appellant on four separate occasions. See Fonda v. CIA, 484 F.Supp. at 502, appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977): “The CIA dealt with plain- tiff’s request in a conscientious manner. It disclosed much material and it came forward with newly discovered docu- ments as located. .. .” *° See J. T. O’REILLY, supra note 30, at J 7.02. * See diss. op. at 22. cosa 3la produced hearings, reports, and Executive Branch back- up documents. Nor do we think discovery was necessary to enable plaintiffs “to reformulate their request to elimi- nate confusion and the possibility of future lawsuits.” * “Legislative history” admittedly is not a term whose meaning can be nicely cabined within bright lines; but it is the term plaintiffs used, and if any ambiguity was introduced thereby plaintiffs must reap what they have sown. It would be bizarre indeed if a plaintiff, simply by employing ambiguous language in his FOIA request, could assure himself of potentially harassing discovery for the purpose of dispelling the confusion he had en- gendered. We hold, therefore, that plaintiffs have made no show- ing of CIA bad faith sufficient to impugn the Wilson affidavit, which on its face suffices to demonstrate that the CIA’s search for responsive documents was complete. For this reason, the district court’s grant of summary judgment without discovery was within its discretion. D. The CIA’s Definition of Agency “Records.” Plaintiffs contend that the CIA’s definition of agency “records” is unduly narrow,’ and that they have been injured because the Agency relied on this definition in denying them records to which they are entitled. The CIA responds that plaintiffs lack standing to maintain 8 See id. at 238. % 32 C.F.R. § 1900.3(¢) (1976) defined CIA “records” to exclude (1) certain indexing and filing documents; (2) certain routing and transmittal sheets; (3) books and periodicals; (4) documents prepared by an agency other than the CIA; and (5) documents furnished by foreign governments under promise of confidentiality. The definition was amended in 1977 and the latter two exclusions were removed. See 42 Fed. Reg. 24,049 (12 May 1977) (codified at 32 C.F.R. § 1900.3(g) (1977) ). 32a this challenge, arguing that it did not rely on the defini- tion’s “exceptions” in processing plaintiffs’ request. The district court did not reach this issue. We do not reach it either. We have held that the CIA made a full search in good faith for responsive documents, and that the withheld material was withheld properly. Since plaintiffs have received all documents to which they are entitled, no live controversy remains between them and the CIA on the definitional issue. E. Attorneys’ Fees. The trial judge declined to award attorneys’ fees to plaintiffs. The FOIA provides that attorneys’ fees and costs may be assessed against the United States “in any case . . . in which the complainant has substantially prevailed.” *° Although a cursory reading of this opinion would not suggest that plaintiffs have passed this test, they argue that even if all relief should be denied them they have “substantially prevailed” because the CIA re- leased the Vandenberg Statement and portions of the Hillenkoetter statement after they commenced suit. Even if plaintiffs could show some causal nexus between their litigation »nd the CIA’s disclosure,’ which they have not done,"’* we doubt that plaintiffs could be said to 5 U.S.C. § 552 (a) (4) (E) (1976). '" See Vermont Low Income Advocacy Council, Inc. (VLIAC) Vv. Usery, 546 F.2d 509, 518 (2d Cir. 1976) (Friend- ly, J.): In order to obtain an award of attorney fees in an FOIA action, a plaintiff must show at minimum that the prosecution of the action could reasonably have been re- garded as necessary and that the action had substantial causative effect on the delivery of the information. *? Res ipsa loquitur, as it were, is of no assistance to plain- tiffs here. The CIA’s release of the Statement, to all appear- ances, represents its good-faith efforts to come forward with 33a have “substantially prevailed” if they, like Pyrrhus, have won a battle but lost the war.’” The judgment of the district court accordingly is Affirmed. newly-discovered documents as located. See p. 30 & note 95 supra. The fact that these documents were released after plaintiffs brought suit on 28 Jan. 1977, to all appearances, owes to the time-consuming nature of a search for materials “used to prepare for congressional testimony,” p. 26 supra; and to the fact that plaintiffs did not request access to such materials until 16 Dec. 1976. See pp. 4-5 supra. Plaintiffs’ argument, in fine, boils down to post hoc, ergo propter hoc, a fallacy that Congress wisely refrained from incorporating into the attorneys’ fees provision of FOIA. See VLIAC, 546 F.2d at 514. *3 In order to win the war, plaintiffs need not obtain a judgment in court. See Cuneo v. Rumsfeld, 553 F.2d 1860, 1364-65 (D.C. Cir. 1977) (Tamm, J.) (citing cases) ; VLIAC, 546 F.2d at 513. They must, however, substantially prevail. Cf. Cuneo, 553 F.2d at 1365 (plaintiffs substantially pre- vailed where, “[a]fter almost eight years of tedious, hard fought litigation, the government, faced with the appointment of a special master to review the case,” supplied all the mate- rial requested). Even if the plaintiff is held to have substan- tially prevailed, the award of attorneys’ fees lies within the district court’s discretion. See Cuneo, 553 F.2d at 1365-66 ; VLIAC, 546 F.2d at 512-13 (citing legislative history). An important factor in the exercise of this discretion is a deter- mination whether the agency has been “recalcitrant in its opposition to a valid claim or [has] otherwise engaged in ob- durate behavior.” Cuneo, 553 F.2d at 1866. The CIA’s be- havior was neither recalcitrant nor obdurate here. 34a BAZELON, Circuit Judge, dissenting: I respectfully sub- mit that the court today departs from well-established principles in this circuit in order to sustain summary judgment for the Central Intelligence Agency (CIA). The court also adopts a restrictive definition of “agency records” that erodes the right to disclosure under the Freedom of Information Act’ (FOIA) and promotes secret law. I. THE NEED FOR DISCOVERY IN FOIA CASES Without discovery, a party to litigation may not have access to facts necessary to oppose a motion for summary judgment. This problem is especially acute for plain- tiffs in FOIA cases. Indeed, recognition of this dilemma has shaped a number of our decisions. In Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977 (1974), summary judgment was granted to the government on the basis of an affidavit declaring that the documents sought were exempt from disclosure. We reversed, recognizing that a FOIA plaintiff “ob- viously cannot know the precise contents of the docu- ments sought; secret information is, by definition, un- known to the party seeking disclosure[,]” 484 F.2d at 823; that “[t]his lack of knowledge . . . seriously dis- torts the traditional adversary nature of our legal sys- tem’s form of dispute resolution[,]” id. at 824; and that, although “formal” discovery under the Federal Rules of Civil Procedure was not at issue,’ procedures would ‘5 U.S.C. § 552 (1976). * The sole issue in Vaughn was whether the agency had demonstrated by affidavit that the documents sought were exempt from disclosure. Plaintiff simply contested the suffi- ciency of the affidavit. 484 F.2d at 823. He did not attempt to bolster his case by serving interrogatories on agency officials, Rule 33, Fed.R.Civ.P., or by deposing them, Rules 30 35a have to be instituted to provide FOIA plaintiffs informa- tion roughly equivalent to what they would obtain through such discovery. “[CJourts will simply no longer accept [from the defendant agency] conclusory and generalized allegations of exemptions . . . but will require a relatively detailed analysis in manageable segments [of the con- tents of documents the agency seeks to withhold].” Jd. at 826. We held such a procedure necessary—before summary judgment could be granted to the government— to enable a FOIA plaintiff “to argue with desirable legal precision for the revelation of the concealed informa- tion.” Id. at 823. Subsequently, the problem of ensuring adversariness arose in a context similar in several respects to the case at bar. In Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (per curiam), before plaintiff was able suc- cessfully to pursue discovery, summary judgment was granted to the government on the basis of an affidavit stating that the documents plaintiff sought were classified “confidential” pursuant to Executive Order 11652, 3 C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV 1974). This court reversed, emphasizing that plaintiff had also and 31. Thus the question whether discovery under the rules should be permitted was not involved in the case. In the present case, by contrast, plaintiffs urge that proper ventilation of the issues requires both discovery and more detailed affidavits. Plaintiffs seek to discover the circum- stances surrounding the creation, and possession by the CIA, of the “hearing transcript,” Part II, infra; the procedures and substantive criteria observed in classifying the “Hillenkoetter statement,” Part III(A), infra; the breadth of the CIA’s search for responsive documents and the reasons for delay, Part IV, infra; and whether the agency’s decision to disclose certain materials was prompted by this lawsuit, Part V, infra. In addition, plaintiffs contend that the affidavits filed by the CIA fail adequately to describe specific materials withheld and the reasons for nondisclosure, Parts II n.8 and III(B), infra. 36a filed an affidavit, as provided for by Rule 56(f), Fed. R.Civ.P.,’ stating his belief that genuine issues existed as to whether the classification was properly effected and indicating that he could not verify that belief without discovery. The court based its holding on the language of Rule 56(f),* the policies underlying the FOIA, and common sense: Facts respecting the classification of the reports in question are solely in the control of the [defyxdant agency]. [Plaintiff] should be allowed to undertake discovery for the purpose of uncovering facts which might prove his right of access to the documents which he seeks. 505 F.2d at 391. It is significant that there was no evidence in Schaffer bolstering plaintiff’s claim that the affidavit submitted by the defendant agency was either executed in bad faith or was somehow erroneous. With- out discovery, plaintiff had no means of producing such evidence. Relying solely on his Rule 56(f) affidavit, the court remanded the case with instructions to permit plaintiff to undertake discovery relevant to whether the reports in question were properly classified “confidential.” Today the court ignores both Schaffer and the “over- whelming emphasis [the FOIA places] upon disclosure,” which guided our analysis in Vaughn. 484 F.2d at 823. It does so in its zeal to protect the CIA from the burden of processing meritless FOIA requests for vital security information. I believe that such protection is available °(f) When affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions tu.be taken or discovery to be had or may make such other order as is just. * See note 3 supra. 37a without eroding the requirements of the FOIA. First of all, the CIA has made no claim that preparation of the index mandated by Vaughn v. Rosen would have been either overly burdensome or likely to disclose matters that should be kept secret. Moreover, the CIA offers neither evidence nor reason to find that a complete bar to discovery was necessary to protect its personnel from harassment. Proper supervision of the discovery process, as described in the margin,’ could have avoided such problems. Through indexing and discovery the adversary system would have worked to maximize the probability that nonexempt information would be disclosed, thus ful- filling the central purpose of the FOIA.° ‘>The Federal Rules leave discovery in the hands of the parties in the first instance. The district court is charged with supervising the process when disputes arise. Thus, if the CIA believed plaintiffs’ requests for discovery to be burden- some or otherwise objectionable, it had several alternatives to a motion for summary judgment that were more consonant with the Spirit of the FOIA. It could, for example, have served objections to specific interrogatories on plaintiffs, who then would have had to decide whether to move in district court to compel answers under Rule 87(a) (2). The CIA could itself have moved in district court to terminate or limit a deposition, Rule 30(d), or for a protective order, Rule 26(c). he grounds for such a protective order, like those for refus- ing to answer specific questions, are generous. The district court “may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense... .” Jd. The district court may also, of course, recognize any privilege asserted by a party seeking to resist discovery. Rule 26(c) (6). Thus discovery would neither have overly burdened the agency nor jeopardized its legitimate secrets, but would have provided both plaintiffs and the dis- trict court the information necessary to make the FOIA work. ® See generally S.REP.NO. 818, 89th Cong., Ist Sess. (1965) ; H.R.Rep.No. 1497, 89th Cong., 2d Sess. (1966). The Senate Report states unequivocally that “[i]t is the purpose of the present bill . . . to establish a general philosophy of full agency disclosure unless information is exempted under 38a In sum, I submit that the grant of summary judgment to the CIA was premature. This position is reinforced by the factual ambiguity which pervades this record and which is exacerbated by the questionable legal stand- ard on which the court distinguishes “agency records” from “congressional documents in an agency’s possession.” II. THE MAJORITY’S “CONTROL/PROPERTY” TEST The dispute in this case centers on two documents which the CIA admittedly possesses and on the scope of the CIA’s search for additional documents responsive to plaintiffs’ request for “legislative history.” The first document is a photostatic copy of a transcript containing the minutes of hearings conducted by the House Com- mittee on Expenditures in the Executive Department on June 27, 1947. (Hereinafter referred to as the “hearing transcript.”) The second document is entitled ‘“State- ment of the Director of Central Intelligence before the House Armed Services Committee—8 April 1948.” (Here- inafter referred to as the “Hillenkoetter statement.’’) My brothers agree with the CIA’s contention that the hearing transcript is simply unavaiiable to the public, whether or not specifically exempted from disclosure by the FOIA.’ They find that the transcript is a “con- clearly delineated statutory language... .” S.REp.No. 813, supra, at 3. See also H.R.REP.NO. 1497, supra, at 3. For a brief discussion of the history and purposes of the FOIA, see EPA v. Mink, 410 U.S. 73, 79-80 (1973). ‘This is our first occasion to consider an agency’s claim that the FOIA does not apply to information in its possession. Compare, e.g., Soucie v. David, 448 F.2d 1067 (D.C.Cir. 1971), in which the issue was whether the Office of Science and Tech- nology is an “agency” for purposes of the FOIA. The Court of Appeals for the Tenth Circuit, however, has considered a claim similar to that raised here by the CIA. In 39a gressional document,” not an “agency record,” and is therefore wholly beyond the reach of the Act. The court reasons that “the circumstances attending [the tran- script’s] generation and the conditions attached to its possession by the CIA” plainly reveal that it “‘remains under the control and continues to be the property of the House of Representatives.” Maj. op. at 12-13 (emphasis added). This conclusion is reached as a matter of law, thus eliminating any justification for discovery, on the basis of representations by CIA officials. The agency has stated by affidavit that the transcript contains testimony taken in Executive Session; typewritten on both the cover and first page of the transcript is the word “Secret”; the text reveals that the stenographer and typist were sworn to secrecy; the CIA retains a copy of the transcript for “internal reference purposes” only. Id. at 12, J.A. at 80. In my view, the record in this case establishes as a matter of law that the hearing transcript is an “agency record,” and the court is empowered to order it with- held only if it qualifies for nondisclosure under FOIA exemptions one or three.* First of all, the CIA claims Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per curiam), the court decided that presentence reports are not “agency records” even though in the possession of prison authorities. I disagree. See note 18 infra. *5 U.S.C. §§552(b) (1), (3) (1976). I submit that the exemption one issue cannot be resolved on this record since the CIA has failed to reveal whether the procedures it followed in classifying the transcript comport with the require- ments of Executive Order No. 11652. The Affidavit of George L. Cary, Legislative Counsel of the CIA (hereinafter “Cary Affidavit”), J.A. at 81, states only that a “Secret” classifica- tion marking has been affixed on the face of the transcript. Tt does not mention the other requirements contained in the Executive Order. See generally Part III(A) infra. I suggest also that neither exemption one nor exemption three can be 40a to have had exclusive possession of this document for more than thirty years.” More importantly, the CIA acknowledges that it employs this information in in- terpreting its organic legislation °—i.e., in making de- cisions with respect to policy and operations. The Act does not define “agency records.” But the House and Senate reports reveal that the fundamental purpose of the FOIA was to open administrative policy and opera- tions to the light of public scrutiny.” held applicable to the transcript until the CIA files an itemized description of its contents. See generally id.; Part III(B) infra. * Although no explanation of “agency records” is provided either in the FOIA itself or in the legislative history, the Justice Department has suggested that the Act requires dis- closure of “records in being and in the possession or control of an agency.” R. Clark, Attorney General’s Memorandum on the Public Information Section of the Administrative Proce- dure Act 23 (1967), reprinted in Freedom of Information Act Source Book, S. REP. No. 82, 938d Cong., 2d Sess. 222 (1974) (emphasis supplied) (hereinafter “Attorney General’s Memo- randum”). This interpretation supports plaintiffs’ position that possession suffices and is consistent with the general view advanced here that any attempt by the courts to define “agency records” must be shaped primarily by the policy of full disclosure underlying the Act. See notes 6 supra and 12 infra. ” The Cary Affidavit states that the agency uses the tran- script “in conjunction with congressional action on legislation dealing with the establishment of the Office of the Director of Central Intelligence, the Central Intelligence Agency and its functions.” J.A. at 80. The reports indicate that the FOIA was intended to strengthen the Public Information section of the Administra- tive Procedure Act, 5 U.S.C. § 1002 (1964), which was “drawn upon the theory that administrative operations and proce- dures are public property which the general public, rather than a few specialists or lobbyists, is entitled to know or 4la I also find the court’s “control/property” test unper- suasive. We are not told what it meant by congressional “control” over a document in an agency’s possession; or in what sense such a document can be considered congres- sional “property.” The fact that Congress is a non-agency does not preclude a document or copy of a document it has created from ever qualifying as an “agency record.” Federal agencies regularly receive documents created by non-agencies that obviously become “agency records” in the ordinary course. See, e.g., Washington Research Project, Inc. v. HEW, 504 F.2d 288 (D.C. Cir. 1974) (grant application submitted to National Institute of Mental Health by noncommercial research scientist) ; Irons v. Gottschalk, 369 F.Supp. 403 (D.D.C. 1974) (patent applications). Nor can the court rely on the view that because Congress may have somehow forbidden the CIA to disclose the transcript, thus exercising ‘“con- trol” over its contents, the transcript cannot be con- sidered an “agency record.” “Control” in this sense goes to the question whether a document is exempt from dis- closure—not to whether it is an “agency record.” * In have ready means of knowing with definiteness and assur- ance.” H.R.REP.NO. 1497, 89th Cong., 2d Sess. 3 (1966) (quoting from H.R.REP.NO. 752, 79th Cong., Ist Sess. 198 (1945). See also S.REP.NO. 813, 89th Cong., Ist Sess. 8 (1965) (“[T]he very purpose for which [the Public Informa- tion Section] ‘was intended [was to guarantee] the public’s right to know the operations of its government.’’) ; Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976); SOC De- velopment Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976). My brothers would facilitate the flow of information be- tween Congress and the Executive branch, maj. op. at 11, at the prohibitive cost of perpetuating the “secret law” we have condemned so frequently. See, e.g., Tax Analysts & Advocates v. IRS, 505 F.2d 350, 353 (D.C. Cir. 1974) ; Cuneo v. Schles- inger, 484 F.2d 1086, 1091n. 13 (D.C. Cir. 1973). 2 This view of congressional “control” derives from the history of the FOIA as well as its plain language. Before the FOIA was enacted, the disclosure provisions of the Adminis- 42a every exemption 3 case, for example, the ultimate ques- tion is whether Congress has forbidden the agency to trative Procedure Act allowed agencies to withhold informa- tion “in the public interest,” or “for good cause shown,” or on the ground that the person seeking the record was not “prop- erly and directly concerned.” 5 U.S.C. § 1002 (1964). The FOIA was designed specifically to eliminate these discretion- ary standards. Soucie v. David, 448 F.2d 1067, 1076-77 (D.C. Cir. 1971) ; Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir. 1970); American Mail Line, Ltd. v. Gulick, 411 F.2d 696, 699 (D.C. Cir. 1969); H.R.REP. No. 1497, 89th Cong., 2d Sess. 1-2, 5-6, 8-9, 11 (1966) ; S.REP. No. 813, 89th Cong., Ist Sess. 3-6, 8, 10 (1965). Congress replaced them with a general requirement that all “records” be disclosed, 5 U.S.C. § 552(a) (3) (1976), offset by nine—and only nine—cate- gories of privileged material. Id. § 552(b) (1)-(9). To avoid the creation of new loopholes, Congress expressly limited the grounds for nondisclosure to those specified in the ex- emptions: “This section does not authorize withholding in- formation or limit the availability of records to the public, except as specifically stated in this section.” Id. § 552(c) (em- phasis supplied). My colleagues justify their view of congressional “control” on the theory that “Congress has broad powers to keep its documents secret .. . [and does not] waive[] its... preroga- tives of confidentiality” when it transfers a “secret” docu- ment to an agency. Maj. op. at n.48. I think it is fair to say that the court creates a tenth exemp- tion for documents subject to what it terms “congressional prerogatives of confidentiality.” To be sure, there can be no doubt about the existence of congressional power to maintain the secrecy of congressional proceedings, see U.S. Const. art. I, § 5, and thus to preserve the secrecy of documents in which the minutes of those proceedings are transcribed. The ques- tion in this case, however, is not whether such a power exists, but whether Congress continues to exercise it after transfer- ring a document to an agency on an ostensibly permanent basis. I read the FOIA as an unequivocal declaration by Congress that documents which have become part of the administrative process are subject to full disclosure unless specifically ex- empted. sD re | 43a disclose the records sought. To illustrate, 26 U.S.C. § 7213 (a) (1) makes it unlawful “to divulge to any person the amount of income... set forth . . . in any income re- turn... .” This proscription does not mean that tax returns are not “agency records.” Rather, tax returns are agency records that must be withheld under exemp- tion 3. See, e.g., Tax Analysts & Advocates v. Internal Revenue Service, 505 F.2d 350 (D.C.Cir. 1974). It appears that the court would supplement the ele- ment of “control” with other concepts having to do with “property.” The court’s ultimate position, as I see it, would be that Congress has a property interest in, as well as control over, the contents of the transcript, the paper on which the contents are typed, and any copy of the transcript. But so sweeping a notion of congres- sional control and property is plainly at odds with the majority’s concession that the Hillenkoetter statement is an “agency record.” Maj. op. at 15. Both the tran- script and the Hillenkoetter statement contain testimony originally prepared by intelligence officials and subse- quently delivered secretly before Congress. J.A. at 79- 82. There is no logical reason to believe, and none has been suggested, that Congress would have an interest in controlling the testimony in one but not the other. The transcript contains, in addition to testimony, ques- tions and comments by committee members. Perhaps, then, the testimony should be considered the property of the Executive branch, where it originated, and the comments the property of Congress. If so, to the extent the transcript consists of nonexempt testimony it should be disclosed under the majority’s own rationale." The ‘The majority asserts that this argument is “frivolous” because “the [hJearing [t]ranscript is not an agency record .. +. Maj. op. at n. 47. In so doing the majority not only overlooks the “property” element of its own test, but also assumes its conclusion. As I understand the legal standard 44a only further difference between the two documents that is even arguably material is that the copy of the Hillen- koetter statement which the CIA possesses was ap- parently typed by agency employees, while the CIA’s copy of the transcript was transcribed and typed by employees of Congress. As I have indicated, the origin of a piece of paper is simply not dispositive of the ques- tion whether it qualifies as an “ageney record.” the court proposes, the question whether a document is an “agency record” requires consideration of whether the docu- ment is the “property” of an agency. Surely, then, the major- ity must consider whether the testimony contained in the transcript is the “property” of the Executive branch. That the majority fails to consider fully the perplexity of its “property” rationale is reflected also by its reliance on Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per curiam). In that case the court held that a presentence report in the hands of prison authorities was not an “agency record” be- cause it “was made for the use of the sentencing court and thereafter remains in the exclusive control of that court de- spite any joint utility it may eventually serve.” Jd. Perhaps the sentencing court can be said to have a “property” interest in a presentence report since such reports are prepared for that court by an arm of that court—the United States Proba- tion Office. See Rule 32(c) (1), Fed.R.Crim.P. Since the con- tents of a presentence report originate with the courts, how- ever, not with the Executive branch, such reports would ap- pear distinguishable under the majority’s standard from the testimony contained in the hearing transcript at issue here. In any event, I believe that Cook was wrongly decided. The brief opinion in that case fails to clarify exactly how the sen- tencing court exercises control over a document in the pos- session of prison authorities. Moreover, the opinion fails to envision the possibility that the sentencing court could ever relinquish such control. In my view, once the prison authori- ties had possession of the report for use in connection with administrative decisions (e.g., parole release), the report be- came a quintessential “agency record.” See note 11 supra and accompanying text. a 45a In any case, even assuming the “control/property” standard is the correct one, factual ambiguities in the record would preclude summary judgment. If Congress does, generally speaking, exert control over, and main- tain property interests in, documents possessed by fed- eral agencies, the majority’s test generates a need to ascertain the methods by which such control is exercised and relinquished, and the means by which such property interests are created and extinguished. In this case dis- covery is necessary specifically to determine whether Congress or the committee that conducted the hearings ever instructed the CIA to preserve the secrecy of the transcript, and, if so, for how long. Apparently the transcript itself contains no such express instruction, and the CIA concedes that the source of the “Secret” classi- fication is unknown. J.A. at 80. The fact that the committee met in Executive Session serves only to raise further questions concerning the nature of the “long- standing practice” governing secrecy of such sessions to which the majority refers. Maj. op. at n.45."* Also, ‘The majority acknowledges that H.R. Rule XI(1) (k) (7), which governs disclosure of testimony taken in Executive Session of the House of Representatives, did not exist in 1947, when the hearings in question were conducted. Maj. op. at n. 45. The majority states, however, that “the Rule simply formalized long-standing practice . . . [requiring that] ‘all testimony taken in executive hearings ... be secret and... not be released . . . without the approval of a majority of the sub- committee.’” Id. (quoting from S.REP.No. 5, 81st Cong., 1st Sess., 3-4 (1949) ). The “practice” to which the court refers is ambiguous at best. For one thing, the court relies on practice in the Senate, and the House may have functioned differently. And the prac- tice of either branch of Congress may have provided for dis- closure without approval by committee after a specified dura- tion. Moreover, assuming Senate practice is relevant, the court should consider whether disclosure of portions of the transcript by the Church Committee, see note 15 infra, might substitute for approval by the committee that originally conducted the hearings. 46a discovery is necessary to determine whether, in the thirty years during which the CIA has possessed the transcript, it has ever acted inconsistently with congressional ‘“con- trol,” as by disclosing the contents of the transcript to other agencies or individuals without seeking congres- sional authority. Finally, plaintiffs should be permitted to pursue further the question whether Congress itself has explicitly or implicitly indicated that it no longer considers preservation of the transcript’s secrecy to be crucial. Even without discovery plaintiffs have demon- strated that the Church Committee has published por- tions of the transcript.” III. THE CIA’s CLAIMS OF EXEMPTION The majority adopts the CIA’s declaration by affidavit that the withheld portions** of the Hillenkoetter state- ment are exempt from disclosure as a matter of law on grounds of national security. This result is reached by two separate paths—directly, under FOIA exemption one, 5 U.S.C. §552(b)(1) (1976), and indirectly, by in- corporating into FOL[A exemption three, id., § 552(b) (3), the nondisclosure provisions of the National Security Act of 1947, 50 U.S.C. § 403(d) (8), and the Central Intelli- gence Agency Act of 1949, 50 U.S.C. § 403g. See gen- erally Maj. op. at 15-23. The majority may well be cor- rect in concluding that disclosure of the withheld ma- terial would threaten our national security. Congress, * The Church Committee Report, Foreign and Military In- telligence, Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activi- ties, S.REP.NO. 94-755, 94th Cong., Ist Sess., pt. I (1976), refers to or quotes from the hearing transcript at 72n. 6; 129n. 2, 7; 136n. 32-34; 138n. 41a; 480n. 17, 487-488n. 53; and 488n. 56-57. 1° The CIA has deleted approximately 20%, or 23 pages, of the Hillenkoetter statement. Brief for the Government at 21. 47a however, has unambiguously expressed its intention that such determinations shall be made de novo. 5 U.S.C. § 552 (a) (4) (B) (1976).° The affidavits submitted by the CIA are no substitute. A. Exemption One * In the case of exemption one the district court must determine the propriety of a document’s classification according to “both procedural and substantive criteria contained in the Executive Order under which it was 17 Congress made its will clear in Pub.L.No. 93-502, 88 Stat. 1561 (1974), which amended the FOIA in part to over- rule the decision by the Supreme Court in EPA v. Mink, 410 U.S. 73 (1973). [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0392%3A1. Public record. Not legal advice.