Opinion for the Court filed by WILKEY, Circuit Judge.
OUTLINE OF OPINION
I. FACTUAL BACKGROUND ....................... ____ II. COURSE OF THE LITIGATION ................. ____ III. ANALYSIS ................................. ____ A.
The Hearing Transcript................ ____ B. The Hillenkoetter Statement........... ____ C. The Thoroughness of the CIA's Search for Responsive Documents....... ____ D. The CIA's Definition of Agency "Records."............................ ____ E. Attorneys' Fees....................... ____
WILKEY, Circuit Judge:
This case arises under the Freedom of Information Act (FOIA).
I. FACTUAL BACKGROUND
The chronology of events must be elaborated in some detail. On 2 May 1975 Sara Holtz
On 14 May the CIA responded to Holtz' letter, advising her that the documents she sought were congressional 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, stating 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 Conference 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 release 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 "investigating the authority, organization and administration" of the Agency, and requested "the documents requested by Ms. Holtz' letters."
On 16 December 1975 Goland and Skidmore wrote the CIA to "elaborate on the basis of [their] appeal," asserting that the Agency's letter of 26 November failed to make clear whether the Transcript and the five published documents accounted for all the material they had requested.
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."
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,
Judge Hart granted the CIA's motion for summary judgment on 26 May 1976.
A. The Hearing Transcript.
The FOIA requires that an agency make "agency records" available to the
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."
This conclusion likewise finds firm support in policy. Congress has undoubted authority to keep its records secret, authority rooted in the Constitution,
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 dictates that it is an "agency record" than the congressional origins of a
The document at issue here is a photostatic reproduction of a stenographic transcript of a hearing held before the House Committee on Expenditures in the Executive Departments on 27 June 1947, entitled "H.R. 2319 — Unification of the Armed Forces." The Committee was sitting in Executive Session. As the first order of business, the Chairman swore the stenographer and typist to secrecy.
Given these facts, we conclude that the Hearing Transcript remains under the control of and continues to 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 Committee met in executive session
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 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
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."
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.
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' protective compass. A court may be able to make such a determination on the basis of affidavits, without the need for discovery or in camera inspection.
The dissent would deny summary judgment on the Exemption 3 status of the Hillenkoetter Statement because the CIA did not furnish a Vaughn v. Rosen index of that document.
C. The Thoroughness of the CIA's Search for Responsive Documents
The CIA asserts that exhaustive searches of its files have succeeded in locating eight, and only eight, documents that are responsive to plaintiffs' FOIA request.
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 from the Act's inspection requirements."
In support of its motion for summary judgment, the CIA submitted affidavits executed by Gene F. Wilson, the Agency's Information and Privacy Coordinator. Wilson 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, Committees of the Senate or Conference
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 affidavits give detailed descriptions of the searches undertaken, 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 transcripts exist, and argue that unpublished transcripts of these hearings, as well as CIA back-up documents prepared for use at these hearings, "must exist."
Second, plaintiffs argue that the Church Committee Report
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 denied 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 unnaturally directed her to the Library of Congress. When Holtz replied that she wanted unpublished hearings and reports, the CIA identified the Hearing Transcript. When Goland and Skidmore said that they wanted not only hearings and reports, but Executive Branch back-up documents, the CIA identified the Vandenberg and Hillenkoetter 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 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 hold, therefore, that plaintiffs have made no showing 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,
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."
The judgment of the district court accordingly is
BAZELON, Circuit Judge, dissenting:
I respectfully submit 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
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 plaintiffs in FOIA cases. Indeed, recognition of this dilemma has shaped a number of our decisions. In Vaughn v. Rosen, 157 U.S. App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (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 "obviously cannot know the precise contents of the documents sought; secret information is, by definition, unknown to the party seeking disclosure[,]" 157 U.S.App.D.C. at 343, 484 F.2d at 823; that "[t]his lack of knowledge . . . seriously distorts the traditional adversary nature of our legal system's form of dispute resolution[,]" id. 157 U.S.App. D.C. at 344, 484 F.2d at 824; and that, although "formal" discovery under the Federal Rules of Civil Procedure was not at issue,
Subsequently, the problem of ensuring adversariness arose in a context similar in several respects to the case at bar. In Schaffer v. Kissinger, 164 U.S.App.D.C. 282, 505 F.2d 389 (1974) (per curiam), before plaintiff was able successfully 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 filed an affidavit, as provided for by Rule 56(f), Fed.R.Civ.P.,
164 U.S.App.D.C. at 284, 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. Without 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 "overwhelming emphasis [the FOIA places] upon disclosure," which guided our analysis in Vaughn. 157 U.S.App.D.C. at 343, 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 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,
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 standard 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
My brothers agree with the CIA's contention that the hearing transcript is simply unavailable to the public, whether or not specifically exempted from disclosure by the FOIA.
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 withheld only if it qualifies for nondisclosure under FOIA exemptions one or three.
I also find the court's "control property" test unpersuasive. 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 congressional "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, 164 U.S.App.D.C. 169, 504 F.2d 238 (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 "control" over its contents, the transcript cannot be considered an "agency record." "Control" in this sense goes to the question whether a document is exempt from disclosure — not to whether it is an "agency record."
It appears that the court would supplement the element 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 congressional control and property is plainly at odds with the majority's concession that the Hillenkoetter statement is an "agency record." Maj. op. at ___ of 197 U.S.App. D.C., at 348 of 607 F.2d. Both the transcript and the Hillenkoetter statement contain testimony originally prepared by intelligence officials and subsequently 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, questions 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.
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 maintain property interests in, documents
III. THE CIA'S CLAIMS OF EXEMPTION
The majority adopts the CIA's declaration by affidavit that the withheld portions
A. Exemption One 18
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 classified." Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 49, 516 F.2d 594, 642 (1975) (quoting from H.R.Rep.No.1380, 93d Cong., 2d Sess., 12 (1974)); see also Halperin v. Department of State, 184 U.S.App.D.C. 124 at 128, 565 F.2d 699 at 703 (1977). Such determinations could not have been made on the record in this case because the affidavit submitted by the CIA fails to reveal the date on which the Hillenkoetter statement was originally classified. J.A. at 81. Without discovery, the district court could merely speculate about which Executive Order, if any,
The district court apparently relied on an asserted reclassification of the Hillenkoetter statement in concluding that "the withheld portions . . . have been properly classified according to the provisions of Executive Order No. 11652," J.A. at 189, which is the Order presently in force. See 3 C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV 1974). Perhaps discovery pertaining to the validity of the original classification would be unnecessary if reclassification under Executive Order No. 11652 had been properly effected. The district court, however, was plainly in error. Section 4(A) of the Executive Order requires that classified material "show on its face its classification and whether it is subject to or exempt from the General Declassification Schedule. It shall also show the office of origin, the date of preparation and [the date of] classification . . .." Excepting that the word "Secret" and the date of preparation appear on the face of the Hillenkoetter statement, J.A. at 80, there is no indication in the record that these procedures were followed.
We said recently in Halperin v. Department of State, 184 U.S.App.D.C. 124, 565 F.2d 699 (1977), that the government cannot claim a statutory exemption from the FOIA if it has failed to comply with the procedures necessary to give such exemption effect.
B. Exemption Three 21
In the case of exemption three the district court must determine whether the material withheld is specifically exempted from disclosure by statute. I have no quarrel with the court's holding that 50 U.S.C. §§ 403(d) and 403g specifically require that "intelligence sources and methods" be kept secret. Maj. op. at ___-___ of 197 U.S. App.D.C., at 349-350 of 607 F.2d. I believe the court is mistaken, however, in eschewing "discovery or in camera inspection to test for the presence of segregable, non-exempt material" on what is essentially the ground that "the Agency has already segregated and released 80% of the Hillenkoetter statement to plaintiffs." Id. at n.65. This rationale violates the court's statutory responsibility to undertake de novo review for "reasonably segregable material," 5 U.S.C § 552(b) (1976); Department of the Air Force v. Rose, 425 U.S. 352, 374, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and places the disclosure decision squarely in the hands of the CIA.
Our decisions establish that in national security cases as in all others, summary judgment is proper without discovery or in camera inspection only if the agency has submitted an itemized index that "subdivide[s] the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification." Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 347, 484 F.2d at 827. See also Weissman v. CIA, 184 U.S.App.D.C. 117, 123, 565 F.2d 692, 698 (1977) (as amended, April 4, 1977); Phillippi v. CIA, 178 U.S.App.D.C. 243 at 247, 546 F.2d 1009, at 1013 (1977). Cf. Mead Data Central, Inc. v. Department of the Air Force, 184 U.S.App. D.C. 350, at 358-360, 566 F.2d 242 at 250-252
The affidavit filed here by the CIA, quoted in part in the court's opinion at 21, plainly fails to supply the information necessary to facilitate the adversary process and de novo review. First, the affidavit speaks for the most part only of intelligence "devices," "sources," "methods," and "operations." Essentially it parrots the language of the exempting statutes, 50 U.S.C. §§ 403(d)(3) ("intelligence sources and methods") and 403g (intelligence "functions"), rather than providing the detailed description the "requesting party [needs] to present its case effectively," Mead Data Central, Inc. v. Dept. of the Air Force, 184 U.S.App.D.C. 350 at 359, 566 F.2d 242 at 251 (1977); Vaughn v. Rosen, supra, 157 U.S. App.D.C. at 343-44, 484 F.2d at 823-24, 828, and a reviewing court requires to make an independent evaluation of an agency's exemption claims.
IV. THE CIA'S SEARCH FOR RESPONSIVE DOCUMENTS
The court refuses to permit plaintiffs to conduct discovery pertinent to the scope of the CIA's search for "legislative history" on the ground that affidavits submitted by the agency reveal as a matter of law that the search was thorough. The majority emphasizes the assertion by the agency's Information and Privacy Coordinator that the "CIA `interpreted [plaintiffs'] request broadly enough to ensure that [it] would locate all documents within the scope of the request.'" Maj. op. at ___ of 197 U.S.App.D.C., at 353 of 607 F.2d; J.A. at 78. The majority states that "the Agency's good faith would not be impugned unless there were some reason to believe that [additional responsive] documents could be located without an unreasonably burdensome search." Maj. op. at ___ of 197 U.S.App.D.C., at 353 of 607 F.2d. Finding that the CIA did, in fact, act in good faith, the court refuses to reach plaintiffs' contention that the agency's definition of "agency records," 32 C.F.R. § 1900.3(g) (1976),
The court may well be correct in concluding that the CIA has acted in good faith, and that its search was thoroughly responsive to plaintiffs' request. My disagreement, again, concerns not the substance but the timing of the judgment in favor of the agency.
As I understand plaintiffs' position, although they do raise questions about the CIA's good faith,
V. ATTORNEY'S FEES
Plaintiffs claim to be entitled to an award of attorney's fees on the ground that the CIA produced several documents only after this litigation was instituted.
In a recent FOIA case Judge Wilkey remarked that "[t]he data which plaintiff seeks to have produced . . . are matters of interest not only to him but to the nation." Weisberg v. Department of Justice, 177 U.S.App.D.C. 161 at 164, 543 F.2d 308 at 311 (1976). This observation applies with particular force to the legislative history underlying the creation of the CIA. I regret that an issue of such importance has not been resolved in accordance with principles of summary judgment.
On Appellants' Motion to Vacate and Petition for Rehearing
Opinion PER CURIAM.
Dissenting opinion filed by Circuit Judge BAZELON.
This petition for rehearing was occasioned by an inexcusable lapse on the part of the Central Intelligence Agency (CIA). While litigating the appeal whose disposition is here questioned, the CIA discovered but failed to disclose within any reasonable time hundreds of documents which were arguably responsive to plaintiff-appellants' Freedom of Information Act request. The documents' existence was not revealed until after we issued our decision, affirming summary judgment for the CIA. The failure to make the disclosure plainly called for naturally casts a cloud over the entire proceeding. Nevertheless, and without the barest intention of countenancing the CIA's untimely disclosure, on analysis of the issues argued and decided, we decline to disturb our judgment, save on the question of attorneys' fees. With respect to that question, we remand to the district court to reconsider its ruling in light of the altered circumstances of this case.
We issued our opinion on 23 May 1978, affirming the district court's grant of summary judgment to the CIA. On 30 May 1978, a week after the issuance of our opinion, the CIA informed the Justice Department that it had found hundreds of additional documents that might be responsive to plaintiffs' FOIA request. The Department promptly informed plaintiffs and this court of CIA's discovery. On 6 June 1978 plaintiffs filed a petition for rehearing and suggestions for rehearing en banc.
On 14 June 1978 the CIA released to plaintiffs' counsel thirty of the additional documents. In an accompanying letter the Agency stated that, even though it did not believe that all of the documents fell within plaintiffs' FOIA request, it was releasing them anyway to assist plaintiffs' scholarly research. The letter explained further that:
The following week, on 23 June 1978, the CIA released to plaintiffs' counsel an additional 291 documents. Also on that date CIA's associate general counsel, Ernest Mayerfeld, wrote the Justice Department to
This, then, appears to be the sequence of events: (1) The district court granted summary judgment to the CIA on 26 May 1976. (2) Plaintiffs filed their notice of appeal on 23 July 1976. (3) In November or December 1977 — while this appeal was still pending but more than a year-and-a-half after the district court's decision — the CIA discovered additional documents, some of which arguably fell within the scope of plaintiffs' FOIA request. (4) Failing to inform plaintiffs, the Justice Department, or this court of the discovery, the CIA undertook a sluggish four-month examination of the documents. (5) It was not until a week after we issued our 23 May 1978 decision that CIA finally revealed its discovery and began releasing the documents.
Contending that this sequence of events completely undermines the basis of our 23 May decision, plaintiffs have now filed a motion summarily to vacate that decision.
Plaintiffs' contention seems to be grounded on three distinct facts or occurrences: first, the fact that additional responsive documents were found to exist; second, the fact that CIA delayed informing this court of the documents until the court had already issued its decision; and third, the fact that CIA ultimately released the documents to plaintiffs. Plaintiffs believe that these three facts warrant vacating the decision of 23 May 1978, at least in part.
In our 23 May decision we resolved five separate issues. We held: (1) that the CIA was not required under the FOIA to release a congressional hearing transcript that remained under the control of Congress; (2) that the CIA had properly deleted portions of the so-called "Hillenkoetter Statement" pursuant to Exemption 3 of the FOIA; (3) that, on the record, the CIA's search for documents responsive to plaintiffs' FOIA request was adequate and that the district court's grant of summary judgment without discovery was within its discretion; (4) that the CIA's definition of "agency records" was not in controversy; and (5) that plaintiffs' counsel were not entitled to attorneys' fees.
After carefully reviewing plaintiffs' contentions and the circumstances surrounding the discovery and belated disclosure of the documents, we find no occasion to disturb our affirmance as to issues (1) through (4), but we do vacate that part of our decision affirming the denial of attorneys' fees and remand to the district court for reconsideration of that issue.
A. Thoroughness of Search Issue
We based our determination of the "search" issue, as did the district court, on three affidavits of Gene F. Wilson, the CIA's Information and Privacy Coordinator. We concluded "that Wilson's sworn affidavits on their face are plainly adequate to demonstrate the thoroughness of the CIA's search for responsive documents. The affidavits give detailed descriptions of the searches undertaken, and a detailed explanation of why further searches would be unreasonably burdensome."
1. Plaintiff's Theory
Plaintiffs contend that the discovery of additional documents indicates that the CIA affidavits in this case, relied upon by both the district court and this court, "are incorrect." Therefore, they argue that we should vacate our decision, or at least that portion of the decision dealing with the "search" issue, because it was predicated on inaccurate affidavits. We disagree.
As a substantive matter, the mere fact that additional documents have been discovered does not impugn the accuracy of the Wilson affidavits. The issue was not whether any further documents might conceivably exist but whether CIA's search for responsive documents was adequate. The Wilson affidavits never stated that no further documents existed; they merely described the scope of the searches that had been undertaken and stated that no additional documents could be located absent an extraordinary effort not required by the FOIA. As we indicated in our opinion, an agency is required only to make
Concededly, the discovery of additional documents is more probative that the search was not thorough than if no other documents were found to exist. Moreover, the delay in disclosing the documents at least arguably evidences a lack of vigor, if not candor, in responding to FOIA requests. However, a disappointed litigant may not avail herself of every imaginable inference from newly disclosed facts in order to upset a final judgment. The occasions when newly discovered evidence or changed circumstances will warrant setting aside a final judgment are limited procedurally as well as substantively.
2. Applicable Principles of Appellate Review
A final district court judgment may be altered on direct review only through two procedures.
The fact that additional documents exist, insofar as it is probative of the thoroughness vel non of the search, is rather plainly "newly discovered evidence." We have found no case in which the Supreme Court or a court of appeals has granted a rehearing or vacated its opinion based on newly discovered evidence. The reason for this should be self-evident: an appellate opinion is based on the record before it, and hence cannot be set aside on the basis of newly discovered facts outside the record.
An appellate court has no factfinding function. It cannot receive new evidence from the parties, determine where the truth actually lies, and base its decision on that determination. Factfinding and the creation of a record are the functions of the district court; therefore, the consideration of newly-discovered evidence is a matter for the district court. The proper procedure for dealing with newly discovered evidence is for the party to move for relief from the judgment in the district court under rule 60(b) of the Federal Rules of Civil Procedure.
Insofar as plaintiffs rely on the facts surrounding the documents' discovery and release by the CIA, their argument is more nearly dependent on "changed circumstances." To be sure, there are occasional cases in which altered circumstances are properly noticed on appeal.
Finally, inasmuch as relief in district court may be foreclosed,
This court recently reserved the question whether section 2106 afforded an alternate way of reopening a final judgment in light of new facts.
Moreover, although the delay in releasing the materials may not be excused, we do not think that that misconduct vitiates the district court's finding either. Only were we to indulge a fairly harsh inference as to the bona fides of the CIA would we be inclined to upset the judgment. The instant facts fall quite short of supporting any such conclusion. Consequently, whether or not there is any possibility of relief from the judgment in district court, we decline to disturb our affirmance respecting the thoroughness of the search. We reach this conclusion fully aware that we deal here with a summary judgment whose factual basis derives from affidavits and without discovery.
3. Relief in the District Court
Relief from a final judgment may be sought in district court through a rule 60(b) motion;
Insofar as the additional documents are new evidence, recourse to rule 60(b) is governed (and apparently precluded) by the rule's strict timing requirements. There is an ironclad one-year limit on the filing of a rule 60(b) motion based on newly discovered evidence. Such motions must be filed within one year from the date the judgment was entered in the district court, which in this case was 26 May 1976 — two years ago and more. The one-year period is not tolled by a pending appeal,
The one-year time limit in rule 60(b) applies only to motions under clauses (1), (2), and (3), covering fraud between the parties, newly discovered facts, and misconduct of a party. There is also a catch-all clause (6), covering "any other reason justifying relief from the operation of the judgment." There is no time limit for motions brought under this clause; however, relief under this clause is not available unless the other
In any case, rule 60(b) contains a saving clause which states that the rule "does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding . . .." Thus the rule does not extinguish the historical authority of equity courts to reform judgments in appropriate cases.
We merely note the difficulty of satisfying the "stringent" rules which circumscribe the trial court's discretion in such matters; our disposition does not, of course, foreclose plaintiffs' bringing an independent suit for relief.
B. The Hearing Transcript, the Hillenkoetter Statement, and the Definition of "Agency Records" Issues
With respect to the congressional hearing transcript issue, we held in our 23 May decision that, given the circumstances of the transcript's creation, it "remains under the control of and continues to be the property of the House of Representatives."
With respect to the Hillenkoetter Statement issue, we held that the deleted portions of the Statement could properly be withheld pursuant to FOIA Exemption 3, which was determined to encompass 50 U.S.C. § 403(d)(3) and 50 U.S.C. § 403g. Our analysis involved a two-step inquiry: (1) whether the CIA's nondisclosure statutes
Finally, we refrained from reaching the definition of "agency records" issue because no live and genuine controversy remained on this matter between plaintiffs and CIA.
Neither the discovery of additional documents, nor CIA's delayed disclosure of this discovery, nor CIA's ultimate release of the documents in any way undermines our holdings on these three issues. The discovery and release of new documents obviously does not change the character of the Congressional Hearing Transcript. It remains a congressional record for the reasons stated in our opinion, and as such was properly withheld by CIA. Similarly, the discovery and release of additional documents clearly has no bearing on whether, as a matter of law, sections 403(d)(3) and 403g are Exemption 3 statutes or on whether portions of the Statement fall within those nondisclosure statutes. Finally, the circumstances of the discovery and release of new documents do not give rise to a controversy between the parties as to CIA's definition of "agency records."
Nevertheless, plaintiffs argue that the CIA's discovery of additional documents does, in a very remote sense, bear upon the validity of our holdings on the Transcript, Statement, and Definition issues. They point out that our conclusions on these three issues were, to varying extents, based partially upon assertions in CIA's affidavits. Thus, they argue that, since the discovery of new documents suggests that CIA's affidavits may have been inaccurate in one respect, namely, the thoroughness of search issue, they may also have been inaccurate in other respects, namely on these other three issues. Therefore, plaintiffs argue, our decision on these points may have rested on incorrect affidavits. In other words, plaintiffs' contention is that the CIA's discovery of new documents is circumstantial evidence that the Agency's affidavits generally may not have been accurate.
Our reasoning with respect to the issue of the search's thoroughness is fully applicable here.
C. Attorneys' Fees Issue
In our 23 May decision we declined to award attorney's fees to plaintiffs, holding that plaintiffs had not "substantially prevailed" even though the CIA had released the Vandenberg Statement and portions of the Hillenkoetter Statement after they commenced suit. We stated: "Even if plaintiffs could show some causal nexus between their litigation and the CIA's disclosure, which they have not done, we doubt that plaintiffs could be said to have `substantially prevailed' if they, like Pyrrhus, have won a battle but lost the war."
Plaintiffs now contend that this aspect of our decision has been undermined by subsequent events. They point not to the CIA's discovery of additional documents or to the Agency's delay in revealing this discovery, but rather to the fact that CIA ultimately released these additional documents. Plaintiffs' argument seems to be that there is the requisite causal connection between their prosecution of the action and CIA's ultimate release of further documents such as they may now be said to have "substantially prevailed" in the litigation. The Agency's release of documents occurred after the decision in this case. Thus, this part of plaintiffs' argument relies on a post-judgment change in factual circumstances.
However, in the interest of expediting this matter and because we entertain little doubt that the merits of the attorneys' fees argument should be reheard in light of the new facts, we vacate that portion of our affirmance and the District Court judgment pertaining to fees and remand for the District Court's reconsideration.
BAZELON, Circuit Judge, dissenting from the denial of the motion to vacate, the denial of rehearing, and the denial of rehearing en banc.
In November or December, 1977, while this case was pending before our panel, the General Counsel of the CIA learned that documents known to be relevant to plaintiffs' FOIA request had been discovered within the agency. Not until May 30, 1978, one week after our opinion issued, and some six months after the documents were "discovered," did the General Counsel inform the Justice Department that these documents had been found.
I begin my examination with a simple question — had the CIA seasonably revealed to us, prior to our decision, that it had "discovered" 321 documents arguably within the scope of plaintiffs' request, would we nonetheless have issued the opinion of May 23? I have no difficulty in concluding that we would not.
If the plaintiffs are in fact satisfied, then any appeal from the denial of discovery is clearly moot. Because mootness would deprive this court of jurisdiction, we would be obliged to note it, regardless of when during the course of the litigation the controversy became moot.
Even assuming that there remained a live controversy between the parties over the existence of additional documents, it is inconceivable to me that we would have been indifferent to the significance of the CIA's admissions in assessing the adequacy of the original search. The majority rests its decision on the observation that "the mere fact that additional documents have been discovered does not impugn the accuracy of the Wilson affidavits." Maj. op. at ___ of 197 U.S.App.D.C., at 369 of 607 F.2d. To my mind, this is a question of fact that cannot possibly be decided on the record before us. The majority notes, "[a]ccording to CIA, the discovery of these documents was entirely adventitious. They were found . . . only after extraordinary effort . . .." Id. at ___ of 197 U.S.App.D.C., at 370 of 607 F.2d. These representations may well be true. But the fact is that at this stage of the litigation they are simply ex parte representations. Plaintiffs have had no opportunity to test these assertions under circumstances that would admit of appropriate findings of fact.
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 forecloses plaintiffs' inquiry into the nature of the CIA's search in response to the FOIA request.
Both the volume of documents discovered by the CIA and the circumstances surrounding the initial withholding and later disclosure of the documents raise serious questions that can only be resolved by a full factual inquiry. The majority finds the "original failure to uncover the documents was wholly understandable." Perhaps I would too, on a proper record. Under our supervisory power, invested in this court by virtue of 28 U.S.C. § 2106 (1976), I would remand this case to the district court to determine the effect of these disclosures on the district court's prior decision upholding the adequacy of the CIA's initial search.
I wish to make explicit the seriousness with which I regard the CIA's dereliction in this case. I do not suggest that the CIA failed to inform this court that it had discovered the documents simply to procure a favorable decision (though this possibility certainly cannot be rejected without a fuller factual inquiry into the circumstances surrounding these events). I do believe firmly, however, that the CIA had a strict obligation to report this information to the court at the moment its arguable relevance became known.
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.
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).
The dissent argues that this test, and the conclusion it produces, prove too much: if the Hearing Transcript is a Congressional document, so also must the Hillenkoetter Statement be, a reductio our colleague evidently views as ad absurdum. See diss. op. at ___ of 197 U.S.App.D.C., at 361 of 607 F.2d. 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 Statement 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 Congress, and it was classified "Secret," not by Congress, but by the CIA. The latter is a transcript of colloquy between Congressmen 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 dispositive 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 ___ of 197 U.S.App.D.C., at 360 of 607 F.2d. 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 purpose 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 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. § 1306 (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]isclosure of confidential information generally" by any officer or employee of the United States "in any manner or to any extent not authorized by law."
(a) Two memoranda from Wm. J. Donovan to the President, dated 1941 and 1944 (cited in Report at 481 n.24 & 482 n.28). These documents antedate by at least three years the legislation cited by plaintiffs; neither memorandum discusses any legislation whatever, nor was either prepared for testimony 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 memoranda 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, 133 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.1a, 133 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.
See Fonda v. CIA, 434 F.Supp. at 502, appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977): "The CIA dealt with plaintiff's request in a conscientious manner. It disclosed much material and it came forward with newly discovered documents as located. . . ."
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 circumstances 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.
For a brief discussion of the history and purposes of the FOIA, see EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
The Court of Appeals for the Tenth Circuit, however, has considered a claim similar to that raised here by the CIA. In 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 13 infra.
My brothers would facilitate the flow of information between Congress and the Executive branch, maj. op. at ___ of 197 U.S.App.D.C., at 346 of 607 F.2d, at the prohibitive cost of perpetuating the "secret law" we have condemned so frequently. See e. g., Tax Analysts & Advocates v. IRS, 164 U.S.App.D.C. 243, 246, 505 F.2d 350, 353 (1974); Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 173, 484 F.2d 1086, 1091 n.13 (1973).
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 . . . prerogatives of confidentiality" when it transfers a "secret" document to an agency. Maj. op. at n.48.
I think it is fair to say that the court creates a tenth exemption 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 question in this case, however, is not whether such a power exists, but whether Congress continues to exercise it after transferring 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 exempted.
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" because it "was made for the use of the sentencing court and thereafter remains in the exclusive control of that court despite any joint utility it may eventually serve." Id. 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 Probation Office. See Rule 32(c)(1), Fed.R.Crim.P. Since the contents of a presentence report originate with the courts, however, not with the Executive branch, such reports would appear 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 sentencing court exercises control over a document in the possession 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 authorities had possession of the report for use in connection with administrative decisions (e. g., parole release), the report became a quintessential "agency record." See note 11 supra and accompanying text.
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 practice of either branch of Congress may have provided for disclosure without approval by committee after a specified duration. 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.
5 U.S.C. § 552(b)(1) (1976).
In Halperin, we did not hold that the document in question necessarily had to be disclosed to plaintiff. Rather, we remanded the case to the district court for a determination of whether disclosure would "do grave damage to the national security . . .." Id., 184 U.S. App.D.C. at 131, 565 F.2d at 706. The decision to remand was made reluctantly:
Id. 184 U.S.App.D.C. at 131, 565 F.2d at 706 (citations omitted). Narrowly circumscribing its discretion, we directed the district court to be "guided by an exacting standard similar to that suggested in Near v. Minnesota, [283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)]." Halperin, 184 U.S.App.D.C. at 132, 565 F.2d at 707. See also Tax Analysts & Advocates v. IRS, 164 U.S.App.D.C. 243, 248, 505 F.2d 350, 355 (1974); Getman v. NLRB, 146 U.S.App. D.C. 209, 450 F.2d 670, 678 (1971); Soucie v. David, 145 U.S.App.D.C. 144, 154, 448 F.2d 1067, 1077 (1971).
In this case, as in Halperin, since the agency failed in reclassifying the Hillenkoetter statement to follow the procedures necessary to give exemption one effect, there is no need to address the question whether the reclassification satisfied the substantive criteria contained in Executive Order No. 11652. I should note, however, that for want of an itemized index of the contents of the Hillenkoetter statement, see Part III(B) infra, the district court could not possibly have given the requisite de novo consideration to the question of substantive classifiability.
5 U.S.C. § 552(b)(3) (1976).
I submit that this view is at war with the purposes of the FOIA. A FOIA request may of necessity be based on imperfect information — or none at all — about the particular agency's methods of classifying and filing information. FOIA's legislative history acknowledges the problem, indicating that a request must supply only "a reasonable description enabling the Government employee to locate the requested records." S.Rep.No.813, 89th Cong., 1st Sess. 8 (1965). See also Sears v. Gottschalk, 357 F.Supp. 1327 (D.C.Va.1973). To require more specificity would be futile, particularly where, as here, the requestor does not know whether or to what extent responsive documents exist. Moreover, FOIA's legislative history reveals that the requirement that a request identify the records sought, 5 U.S.C. § 552(a)(3), is "not to be used as a method of withholding records." S.Rep.No.813, supra, at 8, Accord, Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970). See also Attorney General's Memorandum, supra note 9, at 24. It follows that ambiguity resulting from imperfect information should not be used as a justification for prohibiting the discovery necessary to make the FOIA work.
In this case I would not cripple plaintiffs' right to access to agency records because there is ambiguity in their request. What they apparently seek is any and all information in whatever form pertaining to the CIA's organic statutes. Yet a request so formulated would provide agency employees with scarcely any more guidance than one for "legislative history." The problem, quite simply, is that plaintiffs do not know what form such information will take, or where it might be located in the CIA's files. I would rely on the discovery process to eliminate such a problem.
For the purposes of this discussion I confine my remarks to the impact of these disclosures on the majority's previous discussion of the adequacy of the CIA's search.
Accordingly, this case comes in a different posture than Realty Acceptance Corp. v. Montgomery, 284 U.S. 547, 52 S.Ct. 215, 76 L.Ed. 476 (1932), where the Court of Appeals' order remanding to the District Court to consider new evidence was entered after the Court of Appeals lost jurisdiction of the case (by virtue of its earlier order dismissing the appeal). See id. at 551-52, 52 S.Ct. 215.
The possibility that the CIA has disregarded its responsibilities under the Freedom of Information Act presents a particularly appropriate occasion for the exercise of our § 2106 authority to require further proceedings. Under FOIA, as with any litigation, we adhere to "the fundamental precept that issues on appeal are to be confined to those duly presented to the trial court", Jordan v. Department of Justice, 192 U.S.App.D.C. 144, 591 F.2d 753 (1978). However, in Jordan we recognized that in unusual circumstances we might remand to the trial court (pursuant to § 2106) to permit consideration of a FOIA exemption raised by the government for the first time on appeal. In so observing, we recognized that the policies of FOIA might outweigh the generalized interest in finality that normally confines our review to the issues as presented in the trial court. If the government, under some circumstances, is to be permitted to expand its arguments on appeal to protect legitimate interests in non-disclosure, surely it is equally consonant with the principles of FOIA to permit one who requests information to enlarge the record, especially where there is disturbing evidence of impropriety by the government.
Opp. to Mot. to Vacate at ___-___ of 197 U.S.App.D.C., at 369-370 of 607 F.2d.