Appeal from the United States District Court for the District of Columbia (92cv01024)
Before: Edwards, Chief Judge, Wald and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 1995
Opinion for the court filed by Circuit Judge Randolph.
D. Mark Katz appeals from the district court's decision, on summary judgment, rejecting his claim that the National Archives and Records Administration violated the Freedom of Information Act, 5 U.S.C. Section(s) 552, by failing to honor his request for "any and all photographs relevant to the autopsy" of President John F. Kennedy. Because these items were not agency records under the control of the Archives, we affirm.
After President Kennedy's assassination on November 22, 1963, his body was flown to Washington, D.C., and taken to the Bethesda Naval Hospital where federal doctors performed an autopsy. Report of the President's Commission on the Assassination of President John F. Kennedy 59-60 (1964). Navy personnel took photographs and x-rays of the body. Captain J.H. Stover, Commanding Officer of the U.S. Naval Medical School, delivered the exposed photographic film to Roy Kellerman, a Secret Service agent. At the same time, Commander John H. Ebersole, Acting Chief of Radiology, turned over the x-ray film to Kellerman. Vice Admiral George Burkley, the President's personal physician, "accepted and approved" these actions.
Early the next morning, November 23, 1963, Kellerman delivered the exposed photographic and x-ray film to Secret Service agent Robert Bouck at the Executive Office Building. During the next few weeks, Secret Service personnel had the photographic film developed at the U.S. Navy Photographic Laboratory and returned the film and the prints to the Secret Service office in the Executive Office Building. For the next 17 months, the autopsy photographs and x-rays were stored in a safe in the Secret Service office in the Executive Office Building.
On April 22, 1965, Senator Robert F. Kennedy wrote to White House physician Admiral Burkley "authoriz[ing]" him to release to Senator Kennedy's custody "all of the material of President Kennedy, of which you have personal knowledge, and now being held by the Secret Service." Senator Kennedy requested that Admiral Burkley personally accompany the material and turn it over to Evelyn Lincoln at the National Archives. Senator Kennedy further stated that Mrs. Lincoln was not authorized to release the material to anyone without his written permission. At that time, Mrs. Lincoln, who had been President Kennedy's secretary, occupied a courtesy office in the National Archives building, but was not a government employee. Investigation of the Assassination of President John F. Kennedy, Appendix to Hearings Before the House Select Comm. on Assassinations, 95th Cong., 2d Sess., Vol. VII, at 25-26 (1979) ("House Select Comm. Appendix"). The materials, including the photographs and the x-rays, paraffin blocks of tissue samples, blood smears taken during various periods of President Kennedy's life, and other items, were transferred to Mrs. Lincoln in a locked footlocker on April 26, 1965. No key accompanied the footlocker and the contents were not divulged to officials of the Archives.
In November 1965, Congress passed a statute providing for the acquisition of "all right, title, and interest" in evidence pertaining to the assassination. Pub. L. No. 89-318, 79 Stat. 1185 (1965). The statute gave the Attorney General one year to determine which items to acquire and provided a cause of action for owners of the items to obtain just compensation.
In September 1966, in response to a letter from Dr. John Nichols, Admiral Burkley stated that all medical records, other than those supplied to the Warren Commission, were "being held under the same conditions as the President's private papers."
In October 1966, Attorney General Ramsey Clark asked Senator Robert F. Kennedy about the government's obtaining the autopsy photographs and x-rays pursuant to the 1965 statute. Senator Kennedy "was not sympathetic to the Government's need to acquire the autopsy material." House Select Comm. Appendix at 28. After "heated negotiations," the Kennedy family agreed to donate the autopsy photographs and x-rays to the United States pursuant to the Presidential Libraries Act (then codified at 44 U.S.C. Section(s) 397(e)(1) (1964)). *fn1 House Select Comm. Appendix at 28. The deed's restrictions were "to continue in effect during the lives of the late President's widow, daughter, son, parents, brothers, and sisters, or any of them." Only federal government officials investigating the death of President Kennedy or "recognized expert[s] in the field of pathology or related areas of science or technology, for serious purposes relevant to the investigation" of the death of President Kennedy were to be permitted access to the autopsy photographs and x-rays. Burke ...