Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
In this action arising under the Freedom of Information Act (FOIA or Act),
On September 24, 1978 John A. Paisley set sail on the Chesapeake Bay, alone in his sloop, the "Brillig." The next day the pilotless sloop was found aground on the Bay shore. One week later a body was discovered in the Bay with weighted diver's belts about the waist and chest and with a gunshot wound to the head. The body was subsequently identified as that of John Paisley.
Paisley had worked for the CIA from 1963 to 1974, eventually becoming the agency's Deputy Director of Strategic Research. From 1974 until his death in 1978 Paisley had served as a part-time consultant for the agency. The mysterious circumstances of his death generated considerable media speculation
On April 18, 1979 appellant Maryann Paisley sent identical letters to the CIA, the FBI, and the Department of Defense (DOD), requesting, pursuant to the Act, "any and all records in whatever form and wherever situate with respect to her husband, John A. Paisley."
Dissatisfied, appellant filed this action against the CIA, the FBI, and the DOD on January 7, 1980. Appellant asked the District Court to order defendants to produce all responsive, nonexempt documents in their possession. Subsequently, the parties entered into a number of stipulations, agreeing: (1) to dismiss DOD from the case inasmuch as it possessed no records responsive to appellant's request; (2) that 752 CIA documents responsive to her request were no longer at issue; and (3) that 66 FBI documents responsive to her request were no longer at issue.
On September 25, 1980 the FBI filed affidavits by Special Agents Richard A. McCauley and Thomas L. Wiseman, releasing certain requested documents but withholding parts thereof or other entire documents pursuant to numerous FOIA exemptions
On July 23, 1981 the agencies moved for summary judgment. Appellant filed an opposition coupled with a motion to require the CIA and the FBI to prepare supplemental 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).
The CIA submitted the affidavit of J. William Doswell, describing the 57 documents withheld as congressional records. These documents fall into three distinct categories: (1) CIA phone log entries summarizing 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.
The FBI responded to the District Court's request for further information by submitting the affidavit of Special Agent Sherry L. Davis with a supplemental index identifying eleven documents as congressional records not subject to FOIA or, alternatively, as protected by Exemption 5. All but one of the eleven documents had been received from the 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 directly to appellant concerning the three responsive documents referred by the FBI to the Department.
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 because 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 4, JA 155. The District Court then granted partial summary judgment for the agencies. However, it did order the CIA to release one document to appellant
II. JURISDICTION OVER DOJ DOCUMENTS
Appellant's first allegation of error is that the District Court improperly held that it lacked jurisdiction over five FBI documents
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 jurisdictional 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 request. It cannot simply refuse to act on the ground that the documents originated elsewhere." 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.
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 documents.
III. FOIA ANALYSIS
A. Agency Records Issue
Next, we must consider appellees' contention 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 records because they disclose the deliberative process of the SSCI and would not exist in this form but for the congressional investigation that sparked their creation.
1. Legal standard.
The only documents still in dispute are three held by the FBI
In recent years this court has followed 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 determining under what conditions documents in the possession of an agency may nonetheless be congressional documents, as opposed to agency records, and so be exempt from disclosure under FOIA:
607 F.2d at 347. Two factors are considered dispositive of Congress' continuing intent to control a document: (1) the circumstances attending the document's creation, and (2) the conditions under which it was transferred to the agency. See Holy Spirit Ass'n for Unification of World Christianity 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
While the Supreme Court has never directly 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 telephone conversations made during Henry Kissinger's tenure as National Security Adviser to the President were not "agency records" even though they had been removed from White House files and transferred to Kissinger's new office at the Department of State.
445 U.S. at 157, 100 S.Ct. at 972.
Kissinger's focus on the control exercised by the possessor agency is not incompatible with Goland's focus on Congress' intent to control.
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.
From the record it appears that the SSCI itself generated only five of the disputed documents — all three of the FBI records and two of the CIA documents.
When Congress created the five documents in this case, it affixed no external indicia of control or confidentiality on the faces of the documents.
Similarly, the documents at issue were not subsequently sent to the FBI and the CIA in such a way as to manifest any intent by Congress to retain control. The Government points to no contemporaneous and specific instructions from the SSCI to the agencies limiting either the use or disclosure of the documents.
The only two letters that specifically refer to the Paisley investigation were written
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.
b. Records created by the CIA.
The vast majority of the documents now in the CIA's possession were not even congressionally generated. Most are internal agency memoranda about the Paisley investigation 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.
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 dispositive 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 documents, it is difficult to imagine how such documents could be deemed within congressional control.
The only asserted connection of these documents to Congress
B. Applicability of Speech or Debate Clause
After finding correctly that these documents were agency records, the lower court went on to hold that their release to appellant must still be barred by the Speech or Debate Clause of the Constitution.
It is true that the fundamental purpose of the Clause is to "protect the integrity of the legislative process," United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). This is primarily accomplished by safeguarding the independence of individual legislators — by ensuring that the legislators are not "distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions."
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 effectively terminated. This court is not even being asked to scrutinize Congress' actions or decisions.
1. Exemption 5.
Accordingly, we now examine whether Exemption 5 should bar disclosure to appellant of the disputed documents. This section of FOIA shields from mandatory disclosure "inter-agency or intra-agency memorandums 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(b)(5). The courts have long recognized that this exemption clearly protects those materials that fall within the Government's "deliberative process" privilege.
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 Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C.Cir.1982); Jordan v. U.S. Dep't of Justice, supra, 591 F.2d at 774. Factual material that does not reveal the deliberative process is not protected by this exemption. See EPA v. Mink, supra, 410 U.S. at 89-91, 93 S.Ct. at 837-838.
The District Court held all of the disputed documents to be exempt from disclosure under Exemption 5 because they were generated as part of a joint congressional 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 support the lower court's decision. Nor does the record on appeal permit this court to judge for itself the applicability of Exemption 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 discussed above and so fall within Exemption 5. The following comments should guide the lower court in its determination.
a. Pre-decisional nature of documents.
To ascertain whether the documents 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 congressional 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.
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 decision, 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.
b. Deliberative nature of documents.
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 Exemption 5. It is well established that purely factual material which is severable from the opinion or policy advice in a document is generally not protected and must be disclosed in a FOIA suit. See EPA v. Mink, supra, 410 U.S. at 91, 93 S.Ct. at 838; Mead Data Central, Inc. v. Dep't of the Air Force, 566 F.2d 242, 260-261 (D.C.Cir.1977); K. DAVIS, ADMINISTRATIVE LAW §§ 5:33, 5:34, at 404-407 (2d ed. 1978). However, even factual material may come within Exemption 5 if "the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are `inextricably 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)) (footnotes omitted).
From the Vaughn indices submitted, most of the requested documents do appear to be straightforward, factual summaries of meetings and phone conversations between SSCI and CIA staff personnel. However, because of its holding on the Speech or Debate Clause issue, the District Court declined to make findings as to the nature or segregability of the information contained in these documents. Therefore, on remand
2. Exemptions 1 and 3.
Finally, the Government asserts on appeal that certain documents held by the CIA are also exempt from disclosure pursuant to Exemptions 1 and/or 3, 5 U.S.C. § 552(b)(1) and (3).
Since the District Court resolved the case on other grounds, it never considered these exemptions. On remand, the District Court should rule on the applicability of Exemptions 1 and 3. As with its Exemption 5 procedure, the District Court must order that all "reasonably segregable" nonexempt portions of the documents be released to appellant.
Since we find that the 58 disputed documents 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 affidavits or to conduct an in camera inspection of the documents.
The judgment of the District Court is vacated and the case is remanded for further proceedings in accordance with this opinion.
United States v. American Telephone & Telegraph Co., 567 F.2d 121, 130 (D.C.Cir.1977).
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 analogous contexts, "the rejection of a policy does embody a decision." Common Cause v. IRS, 646 F.2d 656, 660 (D.C.Cir.1981).