Opinion for the Court filed by Senior Circuit Judge MacKINNON.
The Public Citizen Health Research Group and its director, Sidney Wolfe, filed a request under the Freedom of Information Act (FOIA or the Act), 5 U.S.C. § 552 (1976 & Supp. V 1981), to compel release of a report prepared by President-elect Reagan's transition team regarding the Department of Health and Human Services (the Department). The Department denied the request, stating that the report is not an "agency record" within the meaning of the Act. The requestors then filed an action in federal district court to compel disclosure.
By letter in July 1981, plaintiffs requested the Department of Health and Human Services to provide access "to all reports compiled by the Department of Health and Human Services' transition team." The Department responded that
Record (R.) 13.
This decision was appealed to the Assistant Secretary of Management and Budget for the Department, who denied the appeal and reiterated that the documents requested were not "agency records" because they were "neither made, received, nor preserved by the Department" and were not in "the possession or control of the Department." R. 13. The plaintiffs then filed this action in the United States District Court for the District of Columbia.
The facts regarding the documents are uncontroverted.
Applying Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), to these facts, the district court concluded that the Department of Health and Human Services never possessed or exercised control over the transition team reports. The court stated that
Wolfe, supra, 539 F.Supp. at 277.
Therefore, the court held that the transition team reports were not "agency records" within the meaning of the FOIA.
"Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) `improperly'; (2) `withheld'; (3) `agency records.'" Kissinger, supra, 445 U.S. at 150, 100 S.Ct. at 968. A threshold inquiry in any FOIA case is whether the documents requested are in fact "agency records."
While the Supreme Court has expressly declined "to categorize what agency conduct is necessary to support a finding that [the agency] has `obtained' documents,"
Establishing who "possesses" documents is a factual determination. To support their assertion that these materials belong to the Department, the requestors rely upon the mere fact that two sets of the transition team documents are within the four walls of the agency. Such a showing is insufficient. As the Supreme Court stated in Kissinger:
445 U.S. at 157, 100 S.Ct. at 972 (emphasis added).
Newhall's possession of the transition team reports is analogous to Kissinger's possession of his telephone notes. In both instances the documents were generated by an entity outside the reach of the FOIA; the individual's personal possession of the documents pre-dated his affiliation with the agency; and the individual brought the documents within the four walls of the agency, but did not integrate the documents with agency files or records. In neither case was there any real nexus between the documents and the agency other than their physical location. Neither set of documents lost its private character simply upon arrival within the agency building.
The uncontroverted facts reveal that the transition team documents never entered the Department's files and/or resources. In a sworn affidavit, Mr. Casciotti, the Deputy Executive Secretary for Human Services, Department of Health and Human Services, attests that he conducted a search of the Department's records systems, including computerized records, and found no indication that the documents had ever been within the files of the Department. Casciotti Affidavit ¶ 5 (R. 7). The Department of Health and Human Services was never in "possession" of these transition team documents.
Appellants attempt to distinguish Kissinger v. Reporters Committee and urge reliance upon Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), to establish agency possession. In Ryan, this court found that the Attorney General's possession of certain documents authored by United States Senators was coextensive with possession by the Justice Department for the purposes of the FOIA. Appellants assert that unlike the telephone notes in Kissinger, the documents in Ryan actually "related to" the business of the agency in which they were housed. It was because the documents in the Attorney General's possession were essential to the business of the Justice Department, appellants assert, that they became "agency records." Applying their Ryan analysis to the instant situation, appellants argue that because the transition team reports "relate to" the Department of Health and Human Services, possession of these documents by an agency official automatically confers agency possession.
In Ryan, the documents were requested by and delivered to the Attorney General during his tenure and were intended to be used by the Attorney General to execute Justice Department business. The Ryan court summarily stated that the documents were in the "possession of the Justice Department" because the agency's possession and use of the documents was not controverted. 617 F.2d at 786. In fact the issue in Ryan was not "possession." Rather, the dispositive issues were first, who had "control" over the documents — the Senators, the President, or the Attorney General; and second, whether the various functions of the Attorney General and the Justice Department could be isolated for the purpose of determining when the agency was functioning as a FOIA agency and when the Attorney General was functioning as a FOIA-exempt, personal advisor to the President.
In this case, Newhall's possession of the transition team reports is analogous to an individual's possession of a thesis that analyzes the agency and its policies. The fact that the thesis "relates to" the business of the Department would not render it an "agency record." As long as it remains in private possession, the thesis is indistinguishable from any other material with which a public employee may come into contact and which "relates to" his job. Accepting appellants' "relates to" theory would extend the FOIA to an essentially limitless number of materials which could be said to "relate to" agency business. The Act was not intended to be accorded such a reach. The fact that the transition team reports "relate to" the business of the Department does not distinguish them from the telephone notes in Kissinger; neither set of documents ever lost its private character.
Agency "control" is a second indication that an agency has "obtained" a document within the meaning of the FOIA.
Appellants assert that, notwithstanding the fact that the documents have not been used by anyone in the agency, the fact that the documents were within the agency building made it possible for agency personnel to use them. The measure of whether a document, not created by a FOIA agency, is
Our disposition of this case comports with the result reached in a similar case, Illinois Institute for Continuing Legal Education v. United States Department of Labor, 545 F.Supp. 1229 (N.D.Ill.1982). The plaintiffs in Illinois Institute sought disclosure of a "briefing book" on the Department of Labor prepared by the President-elect's transition team. In a thorough opinion, Judge Prentiss Marshall held that one volume of the briefing book was not subject to the FOIA because it was not an "agency record."
To be subject to the disclosure requirements of the FOIA, the transition team reports must be "agency records." To be "agency records," the documents must have been "created" or "obtained" by a FOIA agency. These documents were not "created" by an agency within the reach of the FOIA and were never "obtained" by the Department of Health and Human Services. Therefore, these documents are not "agency records" of the Department.
The plaintiffs have failed to establish a threshold requirement in any FOIA action, i.e., that the documents requested are "agency records." For this reason, the district court properly granted summary judgment for the defendants. The order of the district court is affirmed.
5 U.S.C. § 552(a)(4)(B).
Kissinger, supra, 445 U.S. at 162, 100 S.Ct. at 974. (Stevens, J., concurring in part and dissenting in part).
Recognizing that the issue is not presented in this case, we note that one court has ruled that the President-elect's transition team is not an "agency" within the meaning of the FOIA. Illinois Institute for Continuing Legal Education v. United States Dep't of Labor, 545 F.Supp. 1229, 1231-33 (N.D.Ill.1982).
If "possession" is a necessary predicate to the finding that an agency has "obtained" a document, then our analysis would end with the finding that the Department never possessed these documents. However, because the possession-control test is unclear, we examine both elements and conclude that the Department never exercised either possession or control over the transition team reports.
The "control" issue has been analyzed from two different perspectives. Some courts look to the document creator's intent to retain control, Goland, supra; Carson v. United States Dep't of Justice, 631 F.2d 1008, 1010-15 (D.C.Cir.1980), while others examine the control exercised by the agency to which the FOIA request is directed, Kissinger, supra, 445 U.S. at 157, 100 S.Ct. at 972. See generally, McGehee v. CIA, 697 F.2d 1095, 1107-09 (D.C.Cir.1983), modified in other respects on reh'g, 711 F.2d 1076 (1983).
We do not use the "intent to control" test because unlike the documents in Goland and Carson, these transition team reports are not within the agency's possession and have never been used by the agency. Instead, following Kissinger, we focus upon the nature and extent of control exercised by the agency to which the FOIA request was directed, i.e., the Department.
445 U.S. at 177 n. 7, 100 S.Ct. at 983 n. 7 (emphasis added).