LETTER TO JACK SHAW FROM (SANITIZED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200130022-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 22, 2016
• Document Release Date: April 24, 2009
• Sequence Number: 22
• Publication Date: October 26, 1983
• Content Type: LETTER

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[1, 2] Construing appellant's complaint
liberally, see Haines v. Kerner, 404 U.S. 519,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we
agree with the district court that Williams-
El has averred no facts that would entitle
him to relief. A prisoner has no cause of
action "to contest the agreement between
[two] sovereigns as to the order of prosecu-
tion and execution of sentences." Bullock
v. State of Mississippi, 404 F.2d 75, 76 (5th
Cir.1968); see also Jacobs v. Crouse, 349
F.2d 8571 858 (10th Cir.1965). In addition,
prison officials' have the discretion reason-
ably to restrict the privileges of prisoners
subject to detainers. See 18 U.S.C. ? 4081;
Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97
S.Ct.,274, 279 n. 9, 50 L.Ed.2d 236 (1976).
In any event, Williams-El,would most likely
be serving a sentence with a detainer filed
against him for an unserved sentence
whether he was imprisoned in Maryland
upon his Maryland state conviction or in a
federal institution upon his federal convic-
tion.
This motion 'for'leave to proceed in forma
pauperis is denied and the appeal is hereby
dismissed as frivolous. 28 U.S.C. ? 1915(d).
So ordered.
United States Court of Appeals,
District of. Columbia Circuit.
Argued,. March 2, 1983.
'' betided July 22, 1988.
Lion Act seeking 'information from Central
Intelligence Agency and Federal Bureau of
Investigation, the United States District
Court for the District of Columbia, Oliver
Gasch, J., granted partial summary judg-
ment in favor of CIA and FBI, finding that
release of disputed documents was barred
by speech or debate Clause of Constitution,
as well as Act's deliberative process privi-
lege. Plaintiff appealed. The Court of Ap-
peals, J. Skelly Wright, Circuit Judge, held
that: (1) district court had jurisdiction over
FBI documents that had originated with
Department of Justice and that FBI had
sponse to FOIA requests; (2) FBI and CIA
documents were agency records for pur-
poses of FOIA request; (3) release of rec-
ords was not barred by speech or debate
clause; and (4) remand was required for
more thorough consideration of applicabili-
ty of various FOIA exemptions.
Vacated and remanded.
1. Records 0-51
Since Congress is not an "agency" for
purposes of section of Freedom of-.Informa-
tion Act requiring that agency makeagen-
cy records" 'available to public upon reason-
able request, documents within congression-
al control are not subject to FOIA requests.
5 U.S.C.A. ?? 551(1XA), 552(aX3, 4), (b).
2. Records Q-63
District court with jurisdiction of agen-
cy possessing documents requested' under
Freedom of Information Act has,jurisdic-
tion to resolve status of those- documents,
no ' matter what their origin?, 5 U.S.C.A.
? 552.
3. Records.e $3
District court had jurisdiction over
Federal Bureau of Investigation. documents
that had originated with Department of
Justice and that the FBI had then referred
back,to DOJ for. direct response to Freedom
of Information Act requests.. 5 U.S.C.A.
1. 552.
4. Records 4=53
Whether document . in possession of
agency may nonetheless be congressional
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PAISL v. ? C.I:A. 687'
Me as 712 F.2d 688 (1983)
document, as opposed to agency record, and
so exempt from disclosure under Freedom
of Information, Act, depends on whether,
under all facts of case, document has passed
from control of Congress.and become prop-
erty subject to free disposition of agency
with which document resides; diapositive
factors in determining Congress' continuing
intent to control document include: circum-
stances attending document's .creation, and
conditions under which it;.was transferred
to agency. 5 U.S.C.A. ? 52(aX4XB).
5. Records 4-53
Documents created ;'by Senate Select
Committee on Intelligence and in possession
of either Federal Bureau of Investigation Qr
Central Intelligence Agency Were agency
records, for purposes of Freedom of Infor-
mation Act request, where nothing in either
circumstances of documents' creation or
conditions attending their transfer provided
requisite express indication of congressional
intent to maintain exclusive control over
these particular records. 5 U.S.C.A.
? 552(aX4XB).
6. Records *-53
Records created by Central Intelligence
Agency allegedly in response to.investiga-
tion by Senate Select Committee on Intelli-
gence were agency records, as;:opposed-.to
congressional, documents, for purposes of
Freedom of Information Act request, since
documents were. not created, by Congress
and were never even in Congress' posses-
sion. 5 -U.S.C.A. ? 552(aX4XB).
7.'linited States 0-12
Core protection afforded by speech or
debate clause is to preclude, those civil and
criminal suits that seek to hold individual,
legislators or their aides liable for their
legislative activities. U.S.C.A. Const. Art.
1, ? 6, cl. 1.
8. United States X12 ' +
Action under Freedom, of Information
Act seeking information from Centrall?Intel-
ligence Agency and Federal Bureau 'of In-
vestigation fell outsidg fundamental protec-
tion of speech or debate clause, since suit
involved no individual-member of. Congress
or legislative aide. 5 U.S.C.A. ? 552; U.S.
C.A. Const. Art. 1, ? 6, cl. 1.
9. Records 0-57
To be protected by a. Freedom of Infor-
mation Act's deliberative process privilege;
documents must be predecisional? and must
be "deliberative" . in nature of, reflecting
"give-and-take" of deliberative process and
containing opinions, recommendations, or
advice about, agency policies. 5 U.S.C.A.
? 552(b)(5)
?1U.. Records e-57 ?
E If there is no definable decision-making
prooess.that results in final agency action,
then . documents are not predecisional ., and
are not protected by Freedom of Informa-
tion Act's deliberative process privilege. 5
U.S.C.A. ? 552(bX5).
11. Records 0-57
Factual material that does not reveal
deliberative process ? of ? agency is not pro-
tected by Freedom of Information Act's
deliberative process privilege. 5 U.S.C.A.
? 552(bX5).
12. Records 4-63
Because district court's cursory expla-.
nation did not suffice to support its decision
that disputed documents were exempt from
disclosure 'under Freedom. of. Information
Act's_ deliberative 'process privilege and be=
cause record'on appeal did not permit court
to judge for itself 'applicability of such ex-
emption, remand was required. 5 U.S.C.A.
? 552(bx5).
13. Records Q-65
Agency relying on Freedom of Infor-
mation Act's deliberative process privilege
bears burden of establishing character of
agency: -decision, ' deliberative process in-
volved., and role played' by documents in
course , of that process. 5 U.S.C.A. .
? 552(bX5).
14.' _Recoids?0-57
Ipforinition.gthering and deliberative
process that: produces decision. as. to whether
or not:,to. prosecute someone is protected as
predecisional under Freedom , of. Informa-
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712 FEDERAL REPO?R, 2d SERIES
tion Act's deliberative process privilege. 5
U.S.C.A. ? 552(b)(5).
15. Records (0-57
Purely factual material which is sever-
able from opinion or policy advice in docu-
ment is generally.not protected and must be
disclosed in Freedom ? of 'Information Act
suit. 5 U.S.C.A. ? 552.
16. Records 4-57
Even factual material may come within
Freedom of Information Act's deliberative
process privilege if manner of selecting or
presenting those facts would reveal deliber-
ative process, or if facts are inextricably
intertwined with policy-making process. ? 5
U.S.C.A. ? 552(bx5).
17. Records 4-65
In action under Freedom of Informa-
tion Act, burden lies with agencies to dem-
onstrate that no segregable, nonexempt
portions of documents remain withheld. 5
U.S.C.A. ? 552.
Appeal from the United States District
Court for the District of Columbia (D.C.
Civil Action No. 80-0038).
Eric R. Glitzenstein, with whom Alan B.
Morrison and Cornish F. Hitchcock, Wash-
ington, D.C., were on brief, for appellant.
Katherine A. Meyer, Washington, D.C., en-
tered an appearance for appellant.
? Of the United States ? District Court for the
Southern District of New York, sitting by des-
ignation pursuant to 28 U.S.C. ? 294(d) (Supp.
V 1981).
1. 5 U.S.C. ? 552 (1982).
2. The Act requires that an agency make "agen-
cy records" available to the public upon rea-
sonable request. See 5 U.S.C. ? 552(a)(3) &
(4)(B). Since Congress is not an "agency" for
purposes of 'that provision, see 5 U.S.C.
? 551(IXA) (1982), documents within congres-
sional control are not subject to FOIA requests.
See Goland v. CIA, 607 F.2d 339 (D.C.Cir.1978),
vacated in part on other grounds, 607 F.2d 367
(D.C.Cir.1979), cert. denied, 445 U.S. 927, 100
S.Ct. 1312, 63 LEd.2d 759 (1980). See general-
ly pp. 692-696 hdka._
3. 5 U.S.C. ? 552(b)(5). Exemption 5 shields
from'mandatory disclosure "inter-agency or in-
Michael J. Ryan, Asst.,U.S. Atty., with
whom Stanley S. Harris, -U.S. Atty., and
Royce C. Lamberth, John 0. ,Birch, and R.
Craig Lawrence, Asst., U.S. Attys., Wash-.
ington, D.C., were on brief, for appellees.
Before WRIGHT. and WILKEY; Circuit
Judges, and BONSAL,' Senior District
Judge'
Opinion for "the court filed by -Circuit
Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
[1] In this, action arising under the
Fr'eedom'. of~ Information Act (FOIA or
Act),' appellant Maryann Paisley seeks in-
formation from the Central Intelligence
Agency (CIA) and the Federal ? Bureau of
Investigation (FBI) concerning the 1978
shooting death of her husband, a former
CIA official. These agencies refuse to re-
lease 58 documents that are responsive to
appellant's request, on grounds that the
documents constitute congressional records
not subject to FOIA 2 or, alternatively, that
they are protected from disclosure by Ex-
emption 5 of the Act 3 Additionally, the
CIA claims that certain documents' must
also be withheld pursuant to Exemptions 14
and 3 ? of F01A. The District Court grant-
ed partial summary judgment in favor of
the CIA''and the FBI, fiiidirig that release
of these disputed documents was barred by
the Speech or Debate Clause of the Consti-
tution,6 as well as by the ' Act's'Exemptiod'5.
tra-agency memorandums or letters which
would not be available by law to a party other
than an agency in litigation with the agency[.]"
4. 5 U.S.C. ? 552(b)(1). Exemption 1 'covers
matters that 'are authorized by Executive Order
to be kept secret in the interest of national
defense or foreign policy and that have, in fact,
been properly classified. For the full text of.
Exemption 1, see note 58 Infra.
5. 5 U.S.C. ? 552(b)(3). Exemption 3 .protects
from required disclosure matters that' arc "ape-
- cifically exempted from disclosure by stat-
ute[.]" For the full text of Exemption 3, see
note 59 Infra.
6. The Speech or Debate Clause of the Constitu-
tion'provides that "for any Speech or Debate in
either House, they [members of Congress] shall
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PAISLi. C.LA. 689?
Citeu712F d686 (19")
Beeallse the Speech or Debate Clause, is. FBI, and the Department of Defense
inapposite to this-ease and more thorough (DOD), regtjesting, ' pursuant . to the Act,
consideration of the applicability of, various "any and all records in whatever form and
FOIA exemptions to these agency records is wherever situate with respect to her hus-
necessary, we reverse and remand this case band, John A. Paisley." 9 During that year
to the District Court for further proceed- the CIA released 292 documents in partial
ings in accordance with this opinion. response to her FOIA request. The FBI,
however, refused to expedite processing of
her request and furnished no information
? I: BACKGROUND
whatever.
On September 24, 1978 'John A. Paisley Dissatisfied, appellant filed this action
set sail on the Chesapeake Bay, alone in his net the CIA, the FBI, and the DOD on ~
sloop, the "Brillig." The next day the pilot- d~u~,y 7, 1980. Appellant asked the Dis-
week later a body aground on was the discover- Bay trict Court to order, defendants to produce
shoreless. Osloopne was found
ed in the Bay with weighted diver's belts all responsive, nonexempt documents in
their possession. Subsequently, the parties
about the waist and chest and with ague- entered into a number of stipulations,
shot wound to +the head. The ? body was agreeing: (1) to dismiss DOD from the case
subsequently identified as that of John inasmuch as-it pos.Sessed no records respon-
Paisley. sive to appellant's request; (2) that 752 CIA
Paisley had worked for the CIA from documents responsive to her request were
1963 to 1974, eventually becoming, the agen- no longer at issue; and (3) that 66 FBI
cy's Deputy Director of Strategic Research. documents responsive to her request were
From 1974 until his death in 1978 Paisley no longer at issue.
had served as a part-time consultant for the pn Septlember 25, 1980 the FBL filed affi-
agency.' The mysterious circumstances of davits by Special Agents Richard A.
his death generated considerable media McCauley and Thomas L. Wiseman, releas-
7 speculation and prompted the Senate Se- ing certain requested documents but with-
lect Committee on Intelligence (SSCI or holding parts thereof or other entire docu-
Committee) to initiate its own factfinding ments pursuant to numerous FOIA exemp-
inquiry. The Committee asked the FBI to tions 10 and because some were not "agency
gather and assess the available evidence records." The FBI also noted that a num-
concerning Paisley's death. Upon receipt of her of responsive documents had been re-
the FBI's report on April 18, 1979, the Corn- (erred to the Coast Guard, the CIA, and the
mittee issued a press release stating that it Department of Justice (DOJ), as the origi-
would be making some additional limited nating agencies, for direct response to the
inquiries and would then release a full re- FOIA request. On June 18, 1981 CIA offi-
port.8 No report has ever been made pub- cials Harry E. Fitzwater, Louis J. Dube,
lic. and Paul L. Marr filed similar affidavits,
On April 18, 1979 appellant Maryann releasing some documents in their entirety
Paisley sent identical letters to the CIA, the and others only in part. They likewise jus-
not be questioned in any other Place." U.S. 9. See Complaint for Declaratory and Injunctive
Const. Art. I, ? 6. ci. 1. Relief in Paisley v. CIA, D.D.C. Civil Action No.
80-0038, filed May 13, 1982, at 2 & Exhibit A,
7. One lengthy and probing article appeared-in reprinted at JA 6, 37.
the New York Times Sunday Magazine. See
Szu)c, The Missing C.I.A. Mats N.Y." Times, 10. The FBl withheld material pursuant to FOIA
Jan. 7, 1979 (Magazine), at 13. See also The Exemptions 1, 2, 3; 5, 7(C), and 7(D), 5 U.S.C.
Puzzling Paisley Case, Tug, Jan. 22, ,1979, at ? 552(b)(1). (2), (3), (5), (7XC); & 7(D). '
30.
8. See Statement Issued by Senate Select Com-
mittee on Intelligence it. 1260 Hours, Wednes-
day, I8 April 1979, Joint Appendix (JA) at 166.
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4Q 712 FEDERAL BEER, 2d SERIES
tified the withholding of other documents
and the deletions under various exemp-
tions 11 and because certain records in the
CIA's possession were not deemed "agency
records.
On July 23, 1981 the agencies moved for
summary judgment. Appellant filed an op-
position coupled with a motion to require
the CIA and the FBI to prepare supplemen-
tal indices of the withheld documents in
accordance with the standard set forth in
Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.
1973), cert. denied, 415 U.s. 977, 94 S.Ct.
1564, 39 L.Ed.2d 873 (1974).12 On October
20 the District Court ordered appellees to
provide more information as to the docu-
ments referred to other agencies, and to
prepare supplemental . Vaughn indices for
the. documents% withheld . as congressional,
and not agency, records.
The CIA submitted the affidavit" bf J.
William Doswell, describing the' 57 docu-
ments withheld as congressional records.
These documents fall into three distinct cat-
egories: (1) CIA phone log entries summar-
izing conversations between the agency and
the SSCI; (2) agency memoranda detailing
meetings between CIA personnel and the,
SSCI and its staff; and (3) requests for
information made by the SSCI and the
CIA's responses to those requests." If not
claimed to be, congressional records, all doc-
uments were additionally described as ex-
empt intra-agency memoranda pursuant to
11. The CIA withheld material pursuant to
FOIA Exemptions 1, 2, 3, 5, and 6, 5 U.S.C.
? 552(b)(I), (2), (3), (5), & (6).
12. The requirement of a "Vaughn index" serves
to facilitate court review of an agency's FOIA
responses by making clear the various grounds
for any refusal to release responsive informa-
tion.. The index consists of one document that
adequately describes each withheld record or
deletion and'sets forth the exemption claimed
and why ? that exemption is relevant. See
Founding Church of Scientology v. Bell, 603
F.2d 945, 949 (D.C.Cir.1979) (per curiam);
Mead Data Central, Inc. v. U.S.' Dept of Air
.-Force, ' 566 F.2d 242,! 251' (D.C.Cir.1977) (the
agency"'must provide a relatively' detailed jus-
tification,'specifically Identif,ing the reasons
why a particular exemption is relevant and
correlating those claims with the particular
part of a withheld document to which they
apply").
Exemption 5; 28 'of the documents were
also claimed as exempt due to security clas-
sification under Exemptions 1 and &
The FBI responded to the District Court's
request for further information by submit-
ting the affidavit of Special, Agent Sherry
L. Davis with a supplemental index identi-
fying eleven documents as congressional
records not subject to FOIA or, alternative-
ly,' as protected by Exemption 5. All but
one of the eleven documents 'had been re-
ceived from thee SSCI, and seven had been
classified as "Secret" by the SSCI. See
Davis Affidavit at 6-8, JA 119-121. The
FBI's submission also explained that the
Department of Justice would respond, di-
rectly to appellant concerning the three re-
sponsive documents referred by the FBI to
the Department.14
On May 13, 1982 the District Court sua
sponte dismissed appellant's complaint as to
the three FBI documents referred to the
Department' of Justice, claiming that it
lacked jurisdiction over these documents be-
-cause. DOJ was not formally party to the
suit. Memorandum of the District Court in
Paisley v. CIA,' D.D.C. Civil Action No. 80-
0038, filed May 13, 1982 (hereinafter Dist.
Ct.Op.), at it, JA 155. The District Court
then granted partial summary judgment
for the agencies. However, it did order the
CIA to release one document to appel-
13. These CIA documents are individually iden-
tified and more thoroughly described'in the
Doswell Affidavit at 9-27, JA 132-150. See
also Memorandum of the District Court in Pais-
ley v. CIA, D.D.C. Civil Action No. 80-0038,
filed May 13, 1982 (hereinafter Dist.Ct.Op.) at 9
n. 14, JA 160.
14. Appellees later filed with the District'Court
several letters from SSCI indicating the Com-
mittee's understanding that, in general, docu-
.ments generated by SSCI or those generated by
an agency at SSCI's request were congressional
,documents and exempt from FOIA. More spe-
cifically;.?.the Committee noted' its, under-
i ? standing that, in the instant case, SSCI believed
that the documents generated by the Commit-
tee or by the agency at SSCI request were
congressional documents and would not be re-
leased without prior Copmittee approval.
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PAL& v. C.I.A.
Me as 712 F.2d 688 (1983)
cant-a SSCI press release.15 Seven of: the
FBI documents were found to be congres-
sional documents because the District Court
determined that the Committee maintained
control over them. Id. at 4-6, JA 155-157.?
The' other four FBI documents 19 and the
reinaining 55 CIA documents 14 were found
to be not subject to Committee control and
so were agency records within FOIA cover-
age. Id. at 6-8, JA 157-159. However, the
District Court determined that all 59 docu-
ments could be withheld in their entirety
under the Speech'or Debate Clause of the
Constitution and under Exemption 5 of the
Act. Id. at 7-11, JA 158-162.
II. JUIUSDICT1ON Ova DOJ DpcuMFNTs
Appellant's first' allegation of error is
that the District Court improperly held that
it' lacked jurisdiction over five FBI docu-
ments 18 that had originated with. DOJ and
that the FBI had then referred back to DOJ
for direct response to appellant's FOIA re-
quest. The lower court 'sus sponte dis-
missed- the complaint with respect to these
documents on the theory 'that appellant's
"proper recourse" would be 'against DOJ
itself, an agency not a party to this litiga-
tion.19 In so doing, the District Court fol-
lowed the reasoning of a prior District
Court opinion, McGehee v. CIA, 533 F.Supp.
861, 868-869 (D.D.C.1982), re'e'd,' 697 F.2d
1095 (D.C.Cir.1983) 20 which held that an
agency could properly refer documents re-
15. This CIA document, identified as OLC No.
54, was a copy of the Committee's own press
release of April 18, 1979, referred to at note 8
supra. The District Court also noted that an-
other of the CIA documents, OLC No. 49, had
already been released to appellant. See Dist.
Ct.Op. at 9 n. 14, JA 160; Doswell Affidavit at
24, JA 147.
16. These FBI documents were identified in the
Davis Affidavit' as Nos. 26, 27,' 28, and 119.
17. These CIA documents were identified in the
Doswell Affidavit as OLC Nos. 1-48, 50-53,
and 55-57. .
18. The five FBI documents are identified as
Nos. 40, 46, 49, 50, and 59 in the Davis Affida-
vit. Three of the documents-Nos. 40, 49, and
50-are apparently identical. See Davis Affi-
davit at 4-5, JA 117-118.
60
sponsive 'to FOIA requests to the. agency
that crested the documents ' in the first
place, especially if those documents were
classified or contained sensitive informa-
tion
[2] The District Court's. decision in
McGehee, however, is, no longer good- law.
This court has since reversed that, lower
court holding,` resolving the basic ' jurisdic
tional issue common to both cases. In
McGehee v. CIA we plainly held that "when
an 'agency receives a FOIA request for
" agency records' in 'its possession, it must
take responsibility for processing the rd-
quest., It cannot"siYnply refuse to act on the.
ground that the documents originated else-
`where." 697 F.2d 1095,1110 (D.C.Cir.1983).
A District Court with jurisdiction of the
agency possessing the disputed documents
will therefore have jurisdiction to resolve
the status of those documents, no matter
what their origin. '
[3] In light of our McGehee decision, we
must reverse' the District Court's dismissal
in this case of the five FBI documents
referred to DOJ. We remand so. that the
FBI may present an updated justification
for withholding all or part of those docu-
ments.21 Moreover, to foreclose the possi-
bility' of further unnecessary delay in this
case S9 we direct the FBI to file the appro-
priate ' affidavit within 30 days after is-
suance of the mandate. If the agency can-
not show that any FOIA exemption proper-
20. The District Court also relied on a similar
holding-in British Airports Authority v. CAB,
531 F.Supp. 408, 417-418 (D.D.C.1982).
21. Appellees have not opposed0a remand limit-
ed to this purpose. See brief for appellees at 1
n. 1.
22. Appellant made her initial FOIA request to
the FBI in April 1979. She was not informed
for 18 months that any documents had.been
referred to the Department of Justice (DOJ) for'
processing. The record indicates that DOJ has
,yet to contact appellant as to these referred
documents, despite the FBI's December 1981
1 ? . assertion that the documents would be proc-
essed in ''the near future." See Davis Affidavit
at 5. JA 118.
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60
712 FEDERAL REPOR2d SERIES
ly applies, the District Court should: order
release of these' documents:
III. ' FOIA ANALYSIS
A. Agency Records Issue
Next, we must consider appellees' conten-
tion that, despite the lower court's ruling to
the contrary, all documents in this case are
congressional-not agency-records and are
therefore not subject to; FOIA. The
Government argues that these documents
should be considered as congressional rec-
ords' because they disclose the deliberative
process of the SSCI'and would not exist in
this form, but for the' congressional investi-
ption that sparked their creation.23 We do
not agree.
1. "Legal standard.
The only documents still in dispute are
three held by the FBI u, and 55 in the
possession of the CIA 23 Under 5 U.S.C.
? 552(ax4XB), this court's power to order
their release is dependent upon a showing
that the agencies have (1) "improperly" (2)
"withheld" (3) "agency records." See Kis-
singer v. Reporters Committee for Freedom
of the Press, 445 U.S. 136, 150, 100 S.Ct.
960, 968, 63 L.Ed.2d 267 (1980); McGehee v.
CIA, supra, 697 F.2d at 1105. The only
threshold question posed here is whether
the disputed, documents can be considered
"agency records." 'Neither the Act nor its
legislative history provides any adequate
definition of this key phrase. See, e.g.,
Forsham v. Harris, 445 U.S. 169, 183--184,
23. In a supplemental brief the Government in-
formed the court that its original position on
the agency records Issue was inconsistent with
the position subsequently taken by the FBI in
another proceeding, Allen v. FBI, D.D.C. Civil
Action No. 81-1206 (Nov. 24, 1982). The
Government then attempted to "adjust" its
original argument, offered new evidence as to a
pre-existing agreement on confidentiality be-
tween Congress and the. CIA, and suggested
that the entire question of agency records be
remanded to the District Court to allow Con-
gress, if interested, to brief the issue itself. We
believe that the parties now. before the court
have provided both the adequate record and
full argumentation necessary for a proper reso-.
lution of the agency records Issue.
100 S.Ct. 978, 985.-986, 63 ' L.Ed.2d 293
(1980).26 Accordingly, we turn to existing
case law-as informed by the general poli-
cies of the Act=for guidance on this issue.
[4] .Ia recent years this court has fol-
lowed the standards, set forth in Goland v.
CIA, 607 F.2d 339 (D.C.Cir.1978),, vacated in
part on other grounds, 607 F.2d 367 (D.C.
Cir.1979), cert. denied, 445 U.S. ?927, 100
S.Ct. 1312, 63 L.Ed.2d 759 (1980), for deter-
mining under what, conditions documents in
the possession of an agency may nonethe-
less be congressional documents, as opposed
to agency records, and, so, be, exempt from
disclosure under FOIA:
Whether a congressionally generated doc-
ument has become an agency record ' ?
depends on whether under all the facts of
the case the'do'cument has passed from
the control of Congress and become prop-
erty subject to' the free disposition of the
agency with which the document resides.
607 F.2d at 347. Two factors are con-
sidered diapositive of Congress' continuing
intent to control a document: (1) the cir-
cumstances attending 'the document's cre-
ation, and (2) the conditions ender which it
was transferred to the agency. See Holy
Spirit Assn for Unification of World Chris-
tianity v. CIA, 636 F.2d 838, 841. (D.C.Cir.
1980), other portions of decision vacated
and remanded as moot, 455 U.S. 997, 102
S.Ct. 1626, 71 L.Ed.2d 858 (1982). See also
Ryan v. Dep't of Justice, 617"F.2d 781, 785
(D.C.Cir.1980); Goland v. CIA, supra, 607
F.2d at 347-348. In the absence of any
24. At oral argument counsel for appellant in-
formed the court that FBI Document No. 28
has since been pbtained. This document is an
18-page booklet that was evidently printed by
the SSCI and intended for public consumption.
25. Not included in this total for the CIA's docu-
ments are OLC No. 54, which was released
pursuant 'to the District Court's order, and OLC
No. 49, which has already been released to
appellant according to the CIA and the District
Court. See note 15 supra.
Information Act, 31 STAN L.REv. 1093 (1979).
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PAISI___ . C.I.A. 6930
Cite as 712e 686 (1983)
manifest indications that Congress intended
to exert control over documents in an agen-
cy's possession,-the court will conclude that
such documents are not congressional rec-
ords. ? , .
While the Supreme Court has -never di-
rectly commented on the Goland-approach,
a recent decision has shed some new light-
and confusion-on what may constitute
"agency records" for the purposes of FOIA.:
In Kissinger v. Reporters Committee for
Freedom of the Press, supra, the Court
held, inter alia, that transcripts of tele-
phone conversations made during Henry
Kissinger 's tenure as National Security Ad-
viser to the President were not "agency
records" even though they had been re-
moved from White House files and trans-
ferred to Kissinger's new office at the De-
partment of State.n' Rejecting the argu-
ment that physical location alone should
control the question, the Court instead
looked beyond mere possession of the docu-
ments to the control exercised by the State
Department:
The papers were not in the control of the
State Department at any time. They
were not generated in the State Depart-
27. Had these documents'remained at the White
House, they would be exempt from'FOIA since
the Act's legislative history' makes clear that
the term "agency" does not include "the Presi-
dent's immediate personal staff or units in the
Executive Office whose sole function is to ad-
vise and assist the Presidents ? ? " . Kissinger
v. Reporters Committee for Freedom of the
Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63
L.Ed.2d 267 (1980).
28. As the Court reasoned, "If mere physical
location of papers and materials could confer
status as an 'agency record' Kissinger's person-
al books, speeches, and all other' memorabilia
stored in his office would have been agency
records subject to disclosure under the FOIA,"
445 U.S. at 157, 100 S.Ct at 972. See also
Forsham v. Harris, 445 U.S. 169, 185 n. 16, 100
S.Ct. 978, 987 n. 16, 63 LEd.2d 293 (1980)
("We certainly do not indicate, however, that
physical possession' or initial, creation is by
itself always sufficient."); Goland v. CIA, su-
pra note 2, 607 F.2d at 346.
29. In an earlier case this court noted that the
Kissinger decision used language that Implicitly
suggested approval of the Goland approach.,
Carson v. U.S. Dep't of Justice, 631'?F2d 1008,
1011 (D.C.Cir.1980). ' i ?
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ment. They never entered the State De-
partment's files, and they were not' used
by the Department for any purpose. ? '
445 U.S. `at 157; 100 S.Ct. at 972.
Kissinger's' focup on the control exercised
by the possessor agency'is not incompatible
with Goland's focus on Congress' intent to
control20 Certainly, the two approaches
differ somewhat in that one emphasizes fac-
tors relating to the absence of control by
the possessor, while the ?ther stresses the
manifestations by the creator of an intent
to control. See McGehee v. CIA, supra, 697
F.2d at 1107 n. 52 . Yet, the cases fit to-
gether in standing for the general proposi-
tion that the agency to whom the FOIA
request is directed must have exclusive con-
trol of the disputed documents. If, under
the Goland standard, Congress 90 has mani-
fested its own intent to retain control, then
the,agency-by definition-cannot lawfully
"control" the. documents within the mean-
ing of Kissinger and hence they are not
"agency records." 31 Thus we hold that our
Goland approach has survived and is con-
sistent with the Kissinger decision.. We
30. We express no view here on whether a dif-
ferent analysis would be warranted' were the
? ' creating body other than, Congress., We do
note, however, that Wand's explicit focus on
Congress' intent to control (and not on the
,agency's) reflects those special policy consider-
ations which counsel in favor of according due
deference to Congress' affirmatively expressed'
intent to control its own documents. By first
directing our inquiry into Congress' Intentions
as to the status and disposition of disputed
documents, we thereby safeguard Congress'
long-recognized prerogative to maintain the
confidentiality' of its own records as well as its
vital function as overseer of the Executive
Branch, see McGehee v. CIA, supra note 26,
697 F.2d at 1107-1108; Goland v. C14, supra
note, 2, 607 F.2d at 348 n. 48.
31. See generally Comment, Administrative
Law-Freedom of Information Act Agency
Records, 27 N.Y.LSCH.LREV. 636, 648-654
(1981); Developments Under the Freedom of
Information' Act-1980, 1981 DUKE LJ. ' 338,
349-352; The Supi+eme Cotut; 1979 Term, 94
Hnev.LREv. 75, 232-242 (1980).
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36. In Holy Spirit Assn for Unification of World
Christianity v. CIA, 636, F.2d 838 (D.C.Cir.
1980), other portions of decision vacated and
remanded as moot, 455 U.S. 997, 102 S.Ct.
1626, 71 L.Ed.2d 858 (1982), the court pointed
to the sealed cartons of and detailed memoran-
da accompanying the congressional documents
transferred to the CIA. 636 F.2d at 842.
Those conditions of transfer clearly indicated a ??
congressional intent to retain control of the
documents.
37. Copies of these letters were submitted to the
court in a later supplemental brief as "recently
discovered" information. See supplemental
brief for appellees (appendix).
712 FEDERAL REPOR.1, 2d SERIES
turn now to apply the Goland standard to
the case at bar.,
2. Application of standard.
The documents in dispute in this case can
be divided into two categories-those that
Congress created and those that the CIA
created. All documents are now in the
possession of either the' FBI or the CIA.
a. Records created by Congress.
.[5] From the record it appears that the
SSCI itself generated only five of the dis-
puted documents-all three of the FBI rec-
ords and two of the CIA documents.32 Ap-
plying the two-pronged Goland test, we
find that neither the circumstances sur-
rounding the creation of the documents nor
the conditions under which they were trans-
ferred to the agencies manifests a clear
congressional intent to maintain control.
When Congress created the five docu-
ments in this case, it affixed no external
indicia of control or confidentiality on the
faces of the documents.'s That the SSCI
knew quite well how to classify its docu-
ments as secret is most clear from the fact
that the Committee so stamped at least
seven other of its documents related to the
Paisley investigation-documents which
32. FBI Documents Nos. 26 and 27 are tran-
scripts of police and Coast Guard officials' tes-
timony given before the Committee. No. 119 is
a letter from the chairman of the SSCI to Sena-
tor Roth, advising him that a report will be
submitted on conclusion of the Paisley inquiry.
See Davis Affidavit at 6-7, JA 119-120. The
two CIA documents are both letters. One,
from the chairman of the SSCI to the Attorney
General, points out the "troubling questions"
still unanswered in the Paisley case and re-
quests the FBI to review the available informa-
tion. The other letter, also from the SSCI
chairman, is to Senator Roth advising him that
he will receive a full report upon conclusion of
the investigation. See Doswell Affidavit at 22,
JA 145.
33. By contrast, in Goland v. CIA, supra note 2,
the hearing transcript at issue was clearly
marked "Secret" when created by Congress
and was thus held to be within continuing con-
gressional control. See 607 F.2d at 347.
34. Appellant has not appealed from the deter-
mination that these seven documents were not
were later requested by appellant, but
which were properly held by the District
Court, to be exempt congressional docu-
ments in light of their classification mark-
ings?4 Furthermore, the, Government has
not shown that the hearings which resulted
in the three transcripts of testimony were
conducted under any special conditions of
secrecy.35
Similarly, the documents at issue were
not subsequently sent to the FBI and the
CIA in such a way is^to manifest any intent
by Congress to retain control. The Govern-
ment points to no contemporaneous and
specific instructions from the SSCI to the
agencies limiting either the use or disclo-
sure of the documents.35 Instead, the
Government seeks to rely on an exchange
of correspondence between the SSCI and
the CIA as proof of the existence of a
"pre-existing agreement" that any and all
documents exchanged between the CIA and
the SSCI would require review and approv-
al by the Committee prior to public disclo-
sure.37 We do not consider these six letters
to constitute sufficient evidence of Con-
gress' intent to retain control over these
particular documents.
The only two letters that specifically re-
fer to the Paisley investigation were writ-
agency records subject to free disposition by
the FBI.
35. Again, this contrasts with the factual situa-
tion in?Goland where the hea?ings were held in .
strict secrecy with typist and stenographer
sworn to secrecy. See 607 F.2d at 347.
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Fttl
1 ?. W 1i.1.H.
C1te W 686 (1985)
ten in 1981 by the FBI and the: CIA to the b. Records
SSCI and simply indicate the agencies' be-
lief that the' documents now at issue are
congressional in nature. There is no re-
sponse from the Committee. Such one-sid-
ed correspondence initiated long after the
original creation and transfer of the docu-
ments simply constitutes post hoc rationali-
zation by the agencies. Cf. Holy Spirit
Ass'n for Unification of World Christianity
v. CIA, supra, 636 F2d at 842 (letter from
Clerk of House of Representatives written
after transfer of records does not establish
congressional control).
The remaining letters, written during
1978-82, do indicate the Committee's desire
to prevent release without its approval of
any documents generated by the Committee
or by an intelligence agency in response to
a Committee inquiry.38 However, there is
no .discussion of any particular documents
or of any particular criteria by which to
evaluate and limit the breadth of this inter-
diction. We thus find these letters too gen-
eral and sweeping to provide sufficient
proof, when standing alone, of a specific
intent to transfer these' five Paisley docu-
ments to the FBI and the CIA for a "limit-
ed purpose and on condition of secrecy."
Goland v. CIA, supra, 607 F2.d at 348,n.
48.39 In sum, nothing in either the circum-
stances of the documents' creation or the
conditions attending their transfer provides
the requisite express indication of a con-
gressional intent to maintain exclusive con-
trol over these particular records.
38. One letter in particular, written on Septem-
ber 22, 1982 by the chairman of the SSCI to the
CIA Director, explicitly spells out the Commit-
tee's"desire that all such documents constitute
congressional documents and not agency rec-
ords within the meaning of . 5 'U.S.C.
? 552(a)(4)(B) & (C).
39. See also Holy Spirit Assn for. Unification of
World Christianity v. CIA, supra note 36, 636
F.2d at 842; text at notes 12-13 supra. Fur-
thermore, this "undeistanding" is documented
only as between the' SSCI and the;CIA No
evidence was offered. as to the existence of a
similar accord between the SSCi and the FBI.
40. See generally Doswell Affidavit at 9-27, JA
132-150. ' ' . ...
d0
created by the CIA.
The vast majority of the documents now
in the CIA's possession were hot even con-
gressionally generated. Most are internal
agency memoranda about the Paisley inves-
tigation and notations.of meetings or phone
calls between 'CIA and SSCI personnel or
among CIA personnel alone. In fact, many
of the "documents" are actually just brief
entries made by CIA employees in a journal
kept by the agency's Office of Legislative
Counsel to record all communications with
the Legislative Branch!6 The Government
argues that these reeorkds, although created
by the CIA, should nevertheless be con-
sidered congressional records because they
were generated in direct response to the
SSCI's otvn investigation. On this view,
but for Congress' independent inquiry into
Paisley's death, these documents would not
exist.
[6] This contention is untenable. First
and foremost, these documents were not
created by Congress and were never even in
Congress' possession. While initial creation
or mere possession of a document is not
alone diapositive of the issue of control, see,
e.g., Forsham v. Harris, supra, 445 U.S. at
185 n. 16, 100 S.Ct. at 987 n. 16, both are
certainly highly relevant to the inquiry.
When Congress did not actually create and
'did not ever physically possess certain docu-
ments, it is difficult to imagine how such
documents could be deemed within congres-
sional control "1
The only asserted connection of these
documents to Congress u is that they are
41. This is not to imply that agency-created doc-
uments can never become congressional,
whether by eventual transfer to Congress or by
some other means. See Holy Spirit Assn for
Unification of World Christianity v. CIA, supra
note 36, 636 F.2d at 843.
42. The Government also relies on the "pre-ex-
isting agreement"', reached between the- CIA
and the SSCI to the effect that all CIA created
d& inients'related in any way to a congression-
al ingiiiiy~ woilld tie congressional records' for
FOIA purposes. This argument was discussed
,,,and rejected supra at pp. 694-695.
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?
intimately related to a congressional inves-
tigation and may well have not been creat-
ed but for Congress' investigation of the
Paisley death. That connection is far too
insubstantial and commonplace to establish
congressional control within the meaning of
Goland. To hold otherwise would be to
exempt from FOIA's purview a broad array
of materials otherwise clearly categorizable
as agency records;" thereby undermining
the spirit of broad disclosure that animates
the Act. See, e.g., Dept of the Air Force v.
Rose, 425 U.S. 352, 360-362, 96 S.Ct. 1592,
1598-1599, 48 L.Ed.2d 11 (1976); EPA v.
Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35
L.Ed.2d 119 (1973)!' Many agencies, not
simply. the intelligence community, must
work frequently and closely with congres-
sional committees on matters of budget and
policy or on individual cases. We decline to
hold, in the absence of some stronger indicia
of congressional intent, that all documents
so generated in this or similar "joint" con-
gressional and agency investigations consti-
tute records within Congress' exclusive con-
trol. We therefore affirm ' the District
Court's ruling that, on the basis of all the
J acts of this case, th'e' FBI and CIA docu-
ments are agency records for the purpose of
appellant's FOIA request.
B.,. Applicability of Speech' or Debate
Clause
After finding correctly that these docu-
ments were agency records, the lower court
43. We note that, in the absence of some asser-
tion of congressional control, there would be no
question but that these documents were agency
records. They are, for the most part, internal
agency notations and memoranda, created by
the CIA and kept in its files to serve the securi-
ty, information, and communications purposes
of the agency. See Kissinger v. Reporters
Committee for Freedom of the Press, supra
note 27, 445 U.S. at 157, 100 S.Ct. at 972.
44. But see Navasky, v. CIA, 499 F.Supp. 269,
278 (S.D.N.Y.1980) (hol" that documents
generated by the CIA at the specific request of
Congress were exempt from disclosure as con-
gressional records). .
45. The District Court raised this issue sua
sponte, with neither of the parties briefing the
question. We note at this point that the
went on to hold that their release to appel-
lant must still be barred by the Speech or
Debate Clause of the Constitution.45 Arti-
cle I, ? .6, cl. 1 of the Constitution provides
that "for any Speech or Debate in either
House, they [senators and representatives]
shall not be questioned in any other Place."
According to the District Court, release .of
these documents-intimately related to a
congressional investigation-would inter-
fere with the integrity of the Senate's abili-
ty to oversee the intelligence activities of
the CIA and the FBI. Since the Speech or
Debate Clause has been read generally to
protect the legislative process, the District
Court determined that "the kind of mischief
that would arise from release of these docu-
ments is precisely the kind of evil that the
Speech or Debate Clause is intended to pre-
vent."'* We find that this application of
the Speech or Debate Clause is inapposite;
the Clause and its policies, as interpreted by
this court and the Supreme Court, simply
have no bearing on this case.
[7] It is true that the fundamental pur-
pose of the Clause is to "protect the integri-
ty of the legislative process," United States
T. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531,
2535, 33 L.Ed.2d 507 (1972). This is primar-
ily accomplished by safeguarding the inde-
pendence of individual legislators-by en-
suring that the legislators are not "distract-
ed from or hindered in the performance of
their legislative tasks by being called into
court to defend their actions." 17"? Yet, while
Government no longer supports the disposition
on these grounds as it has taken a contrary
position on the issue in an analogous case.
Instead, the Government requests that we re-
mand the issue so that the Legislative Branch
may, if it desires, argue the issue before the
District Court. See supplemental brief for ap-
pellees at 5. Since the issue has nonetheless
been fully briefed on appeal, we will proceed to
dispose of the argument.
46. DIst.Ct.Op. at 10, JA 161 (footnote omitted).
47. Powell v. McCormack, 395 U.S. 486, 505, 89
S.Ct. 1944, 1955, 23 LEd.2d 491 (1969). See
Eastland v. United States Servicemen's Fund,
.421 U.S. 491, 503, 95, S.Ct. .1813, 1821. 44
L.Ed.2d 324 (1975); United States v.' Johnson,
383 U.S. 169, 180-181, 86 S.Ct. 749, 755-756,
15 LEd.2d 681 (1966) (the Clause "prevent[s]
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Y ET v. L.LA.
cltellM F2d 688 (1983)
the policies behind the Clause are quite
general, actual application of the Clause to
bar judicial proceedings has been strictly
limited.49. The core protection afforded by
the Clause is to preclude those civil or crim-
inal suits that seek to hold individual legis-
lators (or their aides) liable-for their legisla-
''ve activities.49 See, e.g., Doe v. McMillan,
U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912
.173); Gravel v. United States, 408 U.S.
A6, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).
The Clause has also been interpreted to bar
a second type of suit-one that would di-
rectly interfere with the legislative process
by "interfer[ing] with an ongoing activity
by Congress." Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 510 n. '16,
95 S.Ct. 1813, 1824 n' 16, 44 L.Ed.2d 324
(1975); see also Exxon Corp. v. FTC, 589
F.2d 582 (D.C.Cir.1978).
[8] Neither situation exists in this case.
This suit involves no individual member of
Congress or legislative aide; it thus falls
outside the fundamental protection of the
Clause. Nor does this action threaten to -
interfere with.ongoing legislative activity.
The Paisley investigation ground to a halt
years ago; the legislative process has effec-
intimidation [of legislators] by the executive
? ? ? before a possibly hostile. judiciary").
48. As the Supreme Court has reiterated, the
Speech 'or Debate Clause is subject to strict
"finite limits." Doe v. McMillan, 412 U.S. 306,
317, 93 S.Ct. 2018, 2027, 36 L.Ed.2d 912 (1973);
see McSurely v. McClellan, 553 F.2d 1277. 1285
(D.C.Cir.1976) (en bane) (per curiam ). See
generally Reinstein & Silverglate, Legislative
Privilege and the Separation of Powers, 86
HAav.LRev. 1113 (1973) (arguing in favor of
broader protection in criminal proceedings);
Bradley, The Speech or Debate Clause: Bastion
of Congressional Independence or Haven for
Corruption?, 57 N.C.LRsv. 197 (1979) (courts
have taken too broad a view of Clause).
49. In a case involving a Justice Department
challenge to a subpoena, issued by a House
subcommittee, this court summarized existing
precedent on the Speech or Debate Clause:
What the cases establish is that'the immuni-
ty from judicial Inquiry, afforded by the
Speech or Debate Clause is personal to mem-
bers of Congress.' Where they are not ha-
rassed by personal suit against, them; I'the
clause cannot be invoked to immunize : the
congressional subpoena from judicial, scruti-
ny. ,., 11.
a
tively terminated. This court is not even
being asked to scrutinize Congress' actions
or decisions.50 Appellant merely seeks dis=
closure of certain documents prepared in
conjunction with a congressional investiga-
tion long since concluded 61 As this court
has recently held, FOIA's requirements and
exemptions must be taken to be "thq defini-
tive word on disclosure of the information
in the Government's possession covered by
it." Washington Post Co. v: U.S Dept of
State, 685 F.2d 698, 704 (D.C.Cir.1982).
C. Exemptions I
1. Exemption 5.
Accordingly, we now examine whether
Exemption 5 should bar disclosure to appel-
lant of the disputed documents. This sec-
tion of FOIA shields from mandatory dis-
closure "inter-agency or intra-agency mem-
orandums or letters which would not be
available by law to a party other than an
agency in litigation with the agency[.]" 5
U.S.C. ?, 552(bX5). The courts have long
recognized that this exemption clearly pro-
tects those, materials, that fall within the
Government's "deliberative process" privi-
lege sx This privilege serves the primary
United States v. American Telephone & Tele-
graph Co., 567 F.2d 121, 130 (D.CCir.1977).
50. Even if this suit did present a direct chal-
lenge to the congressional investigation into
Paisley's death (which it.does not), that fact
alone would not shield Congress' action from'
judicial scrutiny "the Clause does not and'was
not intended to immunize congressional inves-
tigatory actions from judicial, review. Con-
gress' investigatory power is not,.itself, abso-
lute." United States v. American Telephone &
Telegraph Co., supra note 49, 567 F.2d at 129.
51. As several courts have emphasized, the
Speech or Debate Clause is designed to protect
against direct interference with the activities of
legislators; it is not intended to protect the
mere confidentiality of their materials. See In
re Grand Jury Investigation, 587 F.2d 589, 596
(3d Cir.1978); In re Possible Violations of 18
U.S.C H 201; 371, 491 F.Supp. 211 (D.D.C.
1980).
52: ~ See, e.g., EPA v Mink, 410 U.S. 73, 85-90,
?93 S:Ct.`' 827, 835-837, 35 L.Ed.2d 119 (1973);
.+ Coastal States Gas Corp. V.- Dep't of Energy,
617 ~ F.2d ` 854, '862, 866-869 _ (D.C.Cir.1980);
Vaughn v. Rosen, 523 F.2d 1136 (D.C.Cir.1975).
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? ~~ a uual~~[1L 1-41'Ji V11 1W bU
purpose of permitting agency decisionmak-
ers to engage in that frank exchange of
opinions and recommendations necessary to
the formulation of policy without being in-
hibited by fear of later public disclosure.
See Jordan v. U.S. Dep't of Justice, 591
F.2d 753, 772-774 (D.C.Cir.1978) (en bane);
S.Rep, No. 813, 89th Cong., 1st Seas. 9
(1965).
[9-11] To be protected by Exemption 5's
deliberative process privilege, documents
must meet two requirements. First, the
documents must be "pre=decisional," i.e.,
they must be generated "antecedent to the
adoption of agency policy." Jordan v. U.S.
'Dep't of Justice, supra, 591 F.2d at 774. If
there is no definable decisionmaking process
that results in a final agency decision, then
the documents are not pre-decisional. See
Vaughn v. Rosen; 523 F.2d 1136, 1146 (D.C.
Cir.1975). Second, the documents must be
"deliberative" in nature, reflecting the
"give-and-take" of the deliberative process
and containing opinions, recommendations,
or advice about agency policies. ' See Ar-
thur Andersen & Co. v.'IRS, 679 F.2d 254,
257 (D.C.Cir.1982); Jordan v: U.S; Dept of
Justice, supra, 591 F.2d at 774. Factual
material that .does not reveal the delibera-
tive process is not protected by this exemp-
tion. See EPA v. Mink, supra, 410 U.S. at
89-91, 93 S.Ct. at 837-838.
[12] The' District Court held all of the
disputed_,docuinents to be' exempt, from dis-
closure under Exemption 5 because they
were generated as part of a joint congres-
sional and agency investigation and were
therefore "pre-decisional and confidential."
See Dist.Ct.Op. at 7, JA 158. This cursory
explanation simply does not suffice to sup-
port the lower court's decision. Nor does
the record on appeal permit this court to
judge for itself the applicability of Exemp-
53. It seems quite plausible, for example, that
the CIA might well have -had other, indepen-
dent reasons for investigating Paisley's death.
Conceivably the agency might seek to investi-
gate the facts surrounding this unusual death
in connection with ? its general policies toward
employee safety and. security. The results of
.such. factual investigations undertaken by
agencies have been held to fall within the scope
tion 5. We therefore must remand this
issue so that the District Court in the first
instance may properly analyze whether the
documents meet the two requirements dis-
cussed above and so fall within Exemption
5. The following comments should guide
the lower court in its determination.
a. Pre-decisional nature of documents
[13] To ascertain whether the docu-
ments at issue are pre-decisional, the court
must first be able to pinpoint an agency
decision or policy to which these documents
contributed. The agency, bears the burden
of establishing the character of the decision,
the deliberative process involved, and the
role played by the documents in the ,course
of that process. Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 868 (D.C.Cir.
1980); see also NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 138, 95 S.Ct. 1504, 1510, 44
L.Ed.2d 29 (1975). Unfortunately, ' the
Government has thus' far failed to sustain
this burden. Only at oral argument before
this court did the Government' attempt to
clarify the pre-decisional, nature of these
documents, contending that the documents
had been generated as part of a'joint con-
gressional and agency investigation into
Paisley's death, undertaken to. decide: '(1)
whether to propose new legislation, and (2)
whether to initiate any criminal prosecution
in connection with the death.
[14] Since on the basis of the record
currently before the court we are unable to
ascertain whether the disputed documents
played any role in arriving at' either deci-
sion, the. District Court must conduct' a
more detailed inquiry into whether and how
these documents were used to ' arrive at
these, or any other, decisions 53 We do note
at this point our reservations that a decision
by Congress to initiate legislation can be
of Exemption 5. See Playboy Enterprises, Inc.
v. Dept of Justice, 677 F.2d 931 (D.C.Cir.1982)
(investigation by Justice Department into pos-
sible government misconduct during civil rights
movement of the 1960's);'-Cooper v. Dept of
the ,Navy, '594 F.2d 484 (5th Cir.1979), cert.
denied, 444? U.S. 926, 100 S.Ct. 266, 62 L.Ed.2d
183- (1979) (investigation by Navy into helicop-
ter crash).
13jr.F5?, .. i
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? Cite F.2d688 (1983)
constrtied as an agency decision for FOIA at 404-407 (2d ed. 1978). However, even
purposes." 'I However, a decision as to
whether or, not to prosecute someone in
connection with Paisley's death may well be
such an agency decision; if so, the informa-
tion-gathering and deliberative process that
produces the decision is precisely the,type
of material to be protected as pre-degisional
under Exemption 5.56 On remand, the Dis-
trict Court should also determine the role
normally played by the CIA and the FBI in
initiating or advising about such prosecu-
tions.
b. Deliberative nature of documents.
[15,16] If, . on remand, the District
Court finds that the documents did play a
role in some agency decisionmaking process,
the documents must yet be shown to be
"deliberative" to be protected under Ex-
emption 5. It is well established that pure-
ly factual material which is-severable from
the opinion or policy advice in a document is
generally not protected and must be dis-
closed in a FOIA suit. See EPA v. Mink,
supra, 410 U.S. at 91, 93 S.Ct. at 838; Mead
Data Central, Inc. v. L)ep't of the Air Force,
566 F.2d 242, 260-261. (D C.Cir.1977); K.
DAvis, ADMINISTRATIVE LAw ?? 5:33, 5:34,
54. The Government relies on Ryan v. Dept of
Justice, 617 F.2d 781 (D.C.Cir.1980), as support
for the proposition that Exemption 5's "deliber-
ative process" privilege extends to documents
communicated between an agency and Con-
gress. There are, however, two important dis-
tinctions to be made between the factual situa-
tion in Ryan and that of the instant'case. First,
in Ryan the disputed documents-Senators' re-
sponses to Department of Justice question-
naires-were created in'response to an agency
request. Here, the mirror image exists-agen-
cy responses to congressional requests for in-
formation. Second, the Justice Department in
Ryan was dearly an agency within FOIA en-
gaged in the adoption of an agency policy. In
this case, it may well be that Congress is the
only body engaged in decisionmakdng-i.e. in
deciding whether and what kind, of new legisla-
tion to adopt as a result-of the circumstances
surrounding Paisley's death.. Without further.
'briefing and development,of the record, we are
not prepared to say, whether .Such a? decision
might constitute an agency decislon,as used in
the Exemption 5 context. Norare.we prepared
to say that precisely the same type, documents
generated by an agency prior, to its own deci-
sion are protected from disclosure,but become
factual material may come within Exemp-
tion 5 If "the manner of selecting or
presenting those facts would reveal the de-
liberative process, or if the facts are 'inex-
tricably intertwined' with the policymaking
process." Ryan v. Dep't of Justice, supra,
617 F.2d at 790 (quoting Soucie v. David,
448 F.2d 1067, 1078 (D.C.Cir.1971)) (foot-
notes omitted).1' But this exception cannot
be read so broadly as to undermine the
basic rule; in most situations factual sum-
maries prepared for informational purposes
will not reveal deliberative processes and
hence should be disclosed. See, e.g., ITT
World Communications, Inc. v. FCC, 699
F.2d 1219, 1239 (D.C.Cir.1983); Playboy En-
terprises, Inc- v. Dept of Justice, 677 F.2d
931 (D.C.Cir.1982).
From the Vaughn indices submitted, most
of the requested documents do appear to be
straightforward, ' factual summaries of
meetings and plyone conversations between
SSCI and CIA staff personnel.. However,
because of its holding on the Speech or
Debate Clause issue, the District Court de-
clined to make findings as to the, nature or
?segregability of the information contained
in these documents. Therefore, on remand
unprotected if generated as the basis of is con-
gressional decision.
55. As one court has noted, "Exemption [5] is
tailor-made for the situation in which [a prose-
cutor is] assessing the evidence [he is] compil-
ing. To expose this process to public scrutiny
would unnecessarily inhibit the prosecutor in
the exercise of his traditionally broad discretion
to assess his case and decide whether or not to
file. charges." Fund for Constitutional Gov't v.
Nat'l Archives & Records Service, 485 F.Supp.
1, 13 (D.D.C.1978), aff'd in part and rev'd in
part on other grounds, 656 F.2d 856 (D.C.Cir.
1981).
Of course, no ' problem is posed by the fact
that the agencies' investigation did not result in
any prosecution since, as we have held in anal-
ogous contexts, "the rejection of a policy does
embody a decision.."" , Common Cause v. IRS,
6461.2d 656, 660'(D.C.Cir.1981).
56. See also Montrose Chemical Corp. v. Train,
!''491F.2d 63 (b.t.'Or.1974) (factual summaries
prepared to aid EPA administrator in complex
'I' decision (xempt"under FOIA,because disclo-
sure would reveal selection and decisionmaking
processes 'of administrator).
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I V 712 FEDERAL REPORT 2d SERIES
the court is directed to determine precisely
which documents or portions thereof should
be released as severable factual material
whose disclosure would not, reveal the delib-
erative process.
2. Exemptions 1 and 3.
Finally, the Government asserts on ap-
peal that certain documents held by the
CIA are also exempt from disclosure pursu-
ant to Exemptions 1 and/or 3, 5 U.S.C.
? 552(bXl) and (3).57 Exemption 1 allows
withholding of documents that have been
authorized by Executive Order to be kept
secret in the interest of national defense
and foreign policy and that have been prop-
erly classified.58 Exemption 3 protects doc-
uments that have been specifically exempt-
ed from disclosure by statute.66 The
Government claims that the documents at
issue are properly classified pursuant to Ex-
ecutive Order and therefore are protected
by Exemption 1. Furthermore, the docu-
ments contain information about the offi-
cial activities of CIA employees and about
CIA organization and procedures explicitly
exempted from disclosure by '50 U.S.C.
?? 403(d)(3) and 403g (1976). Thus the
CIA could properly invoke the protection of
Exemption 3.
37. The Government claims that 28 of the 55
CIA documents are being withheld pursuant to
Exemptions 1 and/or 3. At oral argument the
exact number was disputed by appellant's
counsel. Our own examination of the Doswell
Affidavit shows that the CIA asserted these
exemptions for 26 documents: OLC Nos. 4, 6,
14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28,
30, 33, 34, 37, 39, 46, 47, 51, 52, 56, 57. See
Doswell Affidavit at 8-27, JA 131-150.
58. 5 U.S.C. ? 552(b)(1) (1982). The exemption
reads:
(b) This section does not apply to matters
that are-
(IXA) specifically authorized under crite-
ria established by an Executive order to be
kept secret in the interest of national defense
or foreign policy and (B) are in fact properly
classified pursuant to such Executive order[.]
59. 5 U.S.C. ? 552(bX3) (1982). The exemption
reads:
(b) This section does not apply to matters
that are-
[17] Since- the District Court resolved
the case on other grounds,. it never con-
sidered these exemptions. On remand, the
District Court should rule on the applicabili-
ty of ,Exemptions 1 and 3. As with its
EScemption 5 procedure, the District Court
must order that all "reasonably segregable"
nonexempt portions of the documents be
released to appellant.60 The burden once.
again lies with the agencies to demonstrate'
that ? no segregable, nonexempt portions re-
main withheld from appellant 6t
IV. CONCLUSION
Since we find that the 58 disputed docu-
ments withheld by the FBI and the CIA are
agency records whose release is not barred
by the Speech or Debate Clause, they must
be released to appellant absent a showing
that the' documents or portions thereof
come within specific FOIA exemptions. On
remand, therefore, the District Court shall
afford the Government an.opportunity to
justify adequately its withholding of these
documents pursuant to Exemptions 1, 3,
and 5. It may be necessary for the District
Court to order submission of further affida-
vits or to i onduct an in camera inspection
of the documents.6m The District Court
should order the immediate release of any
(3) specifically exempted from disclosure
by statute (other than section 552b of this
title), provided that-such statute (A) requires
that the matters be withheld from the public
in such a manner as to leave no discretion on
the Issue, or (B) establishes particular criteria
for withholding or refers to particular types
of matters to be withheld[.]
60. See 5 U.S.C. ? 552(b) (1982).
61. See'Allen v. CIA, 636 F.2d 1287, 1293 (D.C.
Cir.1980); Ray v. Turner, 587 F.2d 1187, 1214
(D.C.Cir.1978) (Wright, C.J., concurring).
62. If the Government's affidavits fail to meet
the standards of specificity set forth by -this
court, see Hayden v. Nat'l Security Agency, 608
F.2d 1381, 1387 (D.C.Cir.1979), cert. denied
446 U.S. 937, 100 S.Ct. 2156, 64 LEd.2d 790
(1980), then the District Court should consider
In camera ? inspection of the documents. . See
Holy Spirit Assn for. Unification of World
Christianity v. CIA, supra note 36, 636 F2d at
845; Allen v. CIA, supra note 61, 636 F.2d at
1298-1299 (considerations supporting in cam-
era inspection).
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J-ur?ely factual material not falling within ther proceedings in accordance with this
the ambit of Exemptions 1, $, and 5. Final- opinion.
ly, the District Court shall permit the FBI So orderred.
to provide aniupdated justification for with-
holding all or any part of the five docu-
ments previously dismissed from the case
and shall order release of any material
found to be improperly withheld.
The judgment of the District Court is
vacated and the case is remanded for fur-
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