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SCOTT ARMSTRONG v. EXECUTIVE OFFICE PRESIDENT </h1> <p class="docCourt"> </p> <p> August 2, 1996 </p> <p class="case-parties"> <b>SCOTT ARMSTRONG, ET AL., APPELLEES/CROSS-APPELLANTS<br><br>v.<br><br>EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., APPELLANTS/CROSS-APPELLEES</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src=""> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Appeals from the United States District Court for the District of Columbia (No. 89cv00142)</p></div> <div class="numbered-paragraph"><p> Before: Edwards, Chief Judge, Ginsburg and Tatel, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Ginsburg, Circuit Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued September 8, 1995</p></div> <div class="numbered-paragraph"><p> Consolidated with 95-5061</p></div> <div class="numbered-paragraph"><p> Opinion for the Court filed by Circuit Judge Ginsburg.</p></div> <div class="numbered-paragraph"><p> Dissenting Opinion filed by Circuit Judge Tatel.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> This case presents the question whether the National Security Council is an "agency" subject to the Freedom of Information Act, 5 U.S.C. Section(s) 552(f), that is, whether the NSC is an "executive department ... or other establishment in the executive branch." If so, then the NSC is both subject to the disclosure requirements of the FOIA and obligated to preserve its records in accordance with the Federal Records Act, 44 U.S.C. Section(s) 3101-07, 3301-14. The plaintiff-appellees are the National Security Archive, a research institute and library; Scott Armstrong, a journalist affiliated with the Archive; and several associations, including the National Library Association and the National Historical Association (hereinafter referred to collectively as Armstrong). The defendant-appellants are the Executive Office of the President; the Office of Administration and the NSC, which are components of the EOP; the White House Communications Agency, an element of the Department of Defense; and Trudy Peterson, the Acting Archivist of the United States. The district court granted Armstrong's motion for summary judgment, declared that the NSC is an agency subject to the FOIA, and directed it to comply with both the FOIA and the FRA. The court carved out an exception, however, for the records of high-level officials of the NSC who serve solely to advise and assist the President. Armstrong v. Executive Office of the President, 877 F. Supp. 690, 705-06 (D.D.C. 1995).</p></div> <div class="numbered-paragraph"><p> The Government appeals, arguing that because the NSC does not exercise substantial authority, independent of the President, it is not an agency within the meaning of the FOIA and that its treatment as such would so intrude upon the core functions of the President as to "raise a significant constitutional concern" about the separation of powers. Armstrong cross-appeals, challenging the exception for high-level officials who act solely as advisers to the President. Because the NSC operates in close proximity to the President, who chairs it, and because the NSC does not exercise substantial independent authority, we conclude that the NSC is not an agency within the meaning of the FOIA. Accordingly, we reverse the judgment of the district court without reaching the question raised by the plaintiffs' cross-appeal.</p></div> <div class="numbered-paragraph"><p> I. Background</p></div> <div class="numbered-paragraph"><p> The statutory mandate of the NSC is generally "to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security" and to perform "such other functions as the President may direct." National Security Act of 1947, 50 U.S.C. Section(s) 402(a)-(b). The Council members are the President and certain cabinet-level officials, including the National Security Adviser (NSA)-formally, the Assistant to the President for National Security Affairs. The NSC staff, which numbers about 150 persons, is headed by an Executive Secretary, who reports to the NSA, and whom the President appoints without need of Senate confirmation. Id. Section(s) 402(c). <a href="#D*fn1" name="S*fn1">*fn1</a> The Presidential Records Act, 44 U.S.C. Section(s) 2201 et seq., which applies to most NSC documents, provides in part that a president's records are to be made publicly available five years after he leaves office, except that national defense and certain other information is to be made available no later than 12 years after the end of a president's term. 2204. For purposes of the PRA, presidential records do not include "any documentary materials that are ... official records of an agency," as the term "agency" is defined in the FOIA, 5 U.S.C. Section(s) 552(f). 44 U.S.C. Section(s) 2201(2)(B)(I). At the same time, the coverage of the FRA is coextensive with the definition of "agency" in the FOIA, see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993). As a result, no record is subject to both the FRA and the PRA: "The FRA describes a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different and less rigorous regime." Id.</p></div> <div class="numbered-paragraph"><p> The PRA and the FRA differ in several respects that are of concern to the parties to this case. First, while both laws require the preservation of records, the procedures to prevent improper destruction of documents covered by the FRA are significantly more demanding; hence, the district court ordered the NSC to adopt new guidelines in order "to ensure that non-Presidential records are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act." 877 F. Supp. at 707. Second, record-keeping requirements of the FRA are subject to judicial review and enforcement; those of the PRA are not. Armstrong v. Bush, 924 F.2d 282, 295 (D.C. Cir. 1991). Third, the joint regime of the FRA and the FOIA can affect a president's daily operations during his term of office, while the PRA is applicable to a president's papers only after he has left office. Fourth, insofar as NSC records are subject to the FRA, a president may not take such documents with him upon leaving office (as past presidents have generally done) without the approval of the Archivist. 44 U.S.C. Section(s) 3303, 3303a; see also 44 U.S.C. Section(s) 3106 (Attorney General may initiate legal action to retrieve records unlawfully removed).</p></div> <div class="numbered-paragraph"><p> The legal controversy over procedures for the preservation of NSC records has a lengthy and complex history, which is fully recounted in Armstrong, 1 F.3d at 1280-82. In January 1989 Armstrong made a request under the FOIA for all documents stored in the EOP and the NSC electronic communications systems since their installation in the mid-1980's. At the same time Armstrong sought a declaration in district court that those electronic documents and associated backup tapes are federal or presidential records, and an injunction prohibiting their destruction. For our present purpose it is sufficient to recall that the district court concluded that certain items stored in the NSC's computer system are records subject to the FRA, and that the NSC's guidelines relating to the preservation of those records were arbitrary and capricious. Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993). When, four months thereafter, the Government still had not promulgated new guidelines for the management of those electronic records, the district court entered an order of contempt. 821 F. Supp. 761 (D.D.C. 1993). On appeal we agreed that the NSC's guidelines were inadequate, but we reversed the contempt citation, which was premised upon the Government's failure to act by a date certain. 1 F.3d at 1274. At the same time, upon Armstrong's cross-appeal challenging the NSC's procedures for classifying records, we remanded the matter for the district court to determine whether the NSC properly distinguishes between presidential and federal records. Id.</p></div> <div class="numbered-paragraph"><p> The Office of Legal Counsel then rendered an opinion reversing the position it had taken in 1978 and declaring that the NSC is not an agency subject to the FOIA and therefore does not have to comply with the FRA. Memorandum of Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel to Alan J. Kreczko, Special Assistant to the President, Sept. 20, 1993. President Clinton adopted the OLC's new position but instructed his NSA, Anthony Lake, that the NSC should voluntarily disclose "appropriate" records, including those that had been "transferred by one Administration to another for transition and continuity purposes." Memorandum from the President, Mar. 2, 1994. The Executive Secretary thereupon revoked the NSC's FOIA guidelines and asserted that all NSC documents are presidential records, exempt from both the FOIA and the FRA. Memorandum of William H. Itoh to William H. Leary, Mar. 25, 1994.</p></div> <div class="numbered-paragraph"><p> The district court then issued the decision that we now review. The court rejected the OLC's analysis and held that the NSC is an agency subject to the FRA and must maintain and preserve its records in accordance with that statute. 877 F. Supp. at 695. According to the district judge, the NSC does not solely advise and assist the President. Id. at 700. Rather, the NSC exercises authority independent of the President in several areas, including: overseeing the CIA, providing guidance and direction to the intelligence community, and protecting classified information. Id. at 702-03. Nonetheless, the court held that in "limited circumstances" when "high level officials of the NSC ... act not as members of an agency but, solely as advisors to the President," the resulting records are governed by the PRA, not by the FRA. Id. at 705. In the alternative, the district court held that the NSC should be treated as an agency because the NSC had itself previously determined that it was an agency and operated accordingly but had not offered a reasoned explanation for its later change of position. Id. at 706.</p></div> <div class="numbered-paragraph"><p> On this appeal the Government contends, inter alia, that the interaction between the President and the NSC requires privacy and confidentiality. Notwithstanding that national security information and deliberative documents are exempt from disclosure under the FOIA, 5 U.S.C. 552(b)(1) and (5), the Government contends that the possibility of premature disclosure pursuant to the FOIA would make the President's conduct of national security policy excessively circumspect and would chill the communication necessary for effective and efficient decision-making. We need not wade into such deep waters, however, in order to resolve the present controversy.</p></div> <div class="numbered-paragraph"><p> II. Analysis</p></div> <div class="numbered-paragraph"><p> "Records" are defined by the FRA as documentary materials "made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business." 44 U.S.C. 3301. For purposes of the FOIA, the Congress originally defined an agency as "each authority of the Government of the United States," subject to certain enumerated exceptions not relevant here.</p></div> <div class="caseAdCopy"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* Fac2Copy2 */ google_ad_slot = "0998899327"; google_ad_width = 300; google_ad_height = 250; //--> </script> <script type="text/javascript" src=""> </script> </div> <div class="numbered-paragraph"><p> Administrative Procedure Act, 5 U.S.C. Section(s) 551(1). In Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971), which concerned coverage under the FOIA of the Office of Science and Technology, another unit in the Executive Office of the President, we interpreted this definition to encompass "any administrative unit with substantial independent authority in the exercise of specific functions." In 1974 the Congress amended the FOIA definition to cover any "establishment in the executive branch of the Government (including the Executive Office of the President)." 5 U.S.C. Section(s) 552(f). This expanded definition was not, however, meant to cover "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974).</p></div> <div class="numbered-paragraph"><p> That the Congress intended to codify Soucie is clear enough. See Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993). Less clear is the test of an entity's status as an "agency" subject to the FOIA. Is it (a) whether the entity exercises "substantial independent authority," as we put the matter in Soucie; or (b) whether, in the terms of the Conference Report, the entity's "sole function is to advise and assist the President"? As applied to an official or a group of officials who serve in dual roles, the two tests may yield different results. On the difficulty presented by the so-called dual-hat problem, see Ryan v. Department of Justice, <a>617 F.2d 781</a>, 789 (D.C. Cir. 1980) (unit or official that is part of agency and has non-advisory functions cannot be "non-agency in selected contexts on a case-by-case basis"), and Kissinger v. Reporters Comm. for Freedom of the Press, <a>445 U.S. 136</a>, 156 (1980) (notes made by National Security Adviser "in his capacity as Presidential adviser, only" not agency records despite NSA's dual role as official of NSC).</p></div> <div class="numbered-paragraph"><p> Because we conclude below that neither the statutory Council nor the NSC staff performs significant non-advisory functions, we need not address the dual-hat controversy. Nor need we address the implications of that controversy for the exception created by the district court for high-level officials.</p></div> <div class="numbered-paragraph"><p> A. The Three-Factor Test of Meyer</p></div> <div class="numbered-paragraph"><p> In Meyer the court managed to harmonize the "sole function" and the "substantial independent authority" criteria by using a three-factor test to determine the status under FOIA of a unit in the Executive Office of the President. There we held that a group of senior advisers to the President, working within the EOP as the Task Force on Regulatory Relief, did not constitute an agency under the FOIA even though the group "evaluated agency regulatory efforts and had authority to provide some direction over agency rulemaking." 981 F.2d at 1292. Reading the Conference Report against the background of Soucie, we inferred that the Congress intended the phrase "solely to advise and assist the president" to refer to "entities whose characteristics and functions were similar to those of the president's immediate personal staff." Id. at 1293. Therefore we identified "three interrelated factors" relevant to determining whether those who both advise the President and supervise others in the Executive Branch exercise "substantial independent authority" and hence should be deemed an agency subject to the FOIA. These factors are: (1) "how close operationally the group is to the President," (2) "whether it has a self-contained structure," and (3) "the nature of its delegat[ed]" authority. Id. These three factors are not necessarily to be weighed equally; rather, each factor warrants consideration insofar as it is illuminating in the particular case.</p></div> <div class="numbered-paragraph"><p> The closer an entity is to the President, the more it is like the White House staff, which solely advises and assists the President, and the less it is like an agency to which substantial independent authority has been delegated. And while a definite structure may be a prerequisite to qualify as an "establishment within the executive branch," see id. ("The President does not create an "establishment' ... every time he convenes a group of senior staff or departmental heads to work on a problem"), not every establishment is an agency under the FOIA. Although structure and function may be related for purpose of defining an agency-clear lines of authority facilitate the implementation of policy-they are not the same consideration.</p></div> <div class="numbered-paragraph"><p> The three-part test of Meyer is designed succinctly to capture the court's prior learning on the subject whether a unit within the Executive Office of the President is an agency covered by the FOIA. As reflected in those cases, the specific evidence bearing upon that question varies with the entity in question. In Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1262-63 (D.C. Cir. 1980), we held that the Council on Environmental Quality is an agency because of its independent authority to "issue guidelines to federal agencies," "coordinate federal programs," and oversee certain activities of other federal agencies. The Office of Science and Technology is within the ambit of the FOIA, notwithstanding its proximity to the President, because it has independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. Soucie, 448 F.2d at 1075. The Office of Management and Budget is a FOIA agency, in part because it has a statutory duty to provide budget information to the Congress. Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978).</p></div> <div class="numbered-paragraph"><p> On the other hand, although the Council of Economic Advisers is fairly characterized as an "establishment"-it has a staff, a budget, and a defined structure-it has no regulatory power or other functions, under either its organic statute or any Executive Order, that would suggest that it exercises independent authority; therefore, it is not a FOIA agency. Rushforth v. CEA, 762 F.2d 1038, 1043 (D.C. Cir. 1985). Nor do the staff of the Executive Residence come under the FOIA; their duty is to manage the President's home subject to his direction and approval, which they do without the delegation of substantial independent authority. Sweetland v. Walters, 60 F.3d 852, 854-55 (D.C. Cir. 1995). In this case, if the operating relationship between the NSC and the President is as close as the Government maintains, then a hierarchical structure, large staff, and separate budget will not by themselves subject the NSC to the FOIA; Armstrong will have to show that the NSC exercises significant independent authority in order to qualify it as an agency. It is not the number of functions delegated to the NSC, but the degree of the NSC's independence in discharging them, that matters. See Meyer, 981 F.2d at 1293. If Armstrong shows that the NSC does exercise substantial independent authority, then the NSC cannot be said solely to advise and assist the President; that is the consequence of the "sole function" test set forth in the Conference Report and fleshed out in Meyer.</p></div> <div class="numbered-paragraph"><p> Whether an entity without a self-contained structure could ever qualify as an agency that exercises substantial independent authority seems very doubtful. For this reason, we take up first the question whether the NSC has a self-contained or determinate structure. If the organizational lines of authority and responsibility within the NSC are undefined, or the NSC cannot readily be distinguished from other elements of the Executive Office of the President that solely advise and assist the President, then we do not need to go any further down the Meyer road in order to conclude that the NSC is not a distinct agency. Because we conclude that the NSC's structure is self-contained, however, we do go on to examine the other Meyer factors; only then are we led to the conclusion that the NSC is not an agency subject to the FOIA.</p></div> <div class="numbered-paragraph"><p> 1. The Structure of the NSC</p></div> <div class="numbered-paragraph"><p> We said in Meyer that a "characteristic of the President's immediate staff is its lack of a firm structure." 981 F.2d at 1296. Here the district court correctly characterized the NSC as having a "firm structure," a staff, and a separate budget, 877 F. Supp. at 700-01, making it less like (to quote the Conference Report again) "the President's immediate personal staff or [a] unit[] in the Executive Office [of the President] whose sole function is to advise and assist the President." For its part, however, the Government contends that the NSC staff overlaps that of the President's immediate personal staff and that the structure of the NSC merely reflects and confirms its role as the personal instrument of the President; the organization and functions of the NSC staff are molded by each President, acting through his National Security Adviser, to reflect the priorities of that President.</p></div> <div class="numbered-paragraph"><p> President Clinton's National Security Adviser, Anthony Lake, implies, in a declaration submitted to the district court, that the NSC is not the self-contained structure it might seem from a glance at its organization chart. The NSC staff, he reports, "operates within the White House as the President's foreign policy and national security staff "; indeed, he points out, several individuals occupy positions on the organizational charts of both the White House and the NSC.</p></div> <div class="numbered-paragraph"><p> Armstrong responds by emphasizing the hierarchical NSC organization chart, which, he argues, reveals an elaborate, self-contained structure and bureaucracy of the sort indicative of an agency under the analysis in Meyer. We agree. The NSC staff is not an amorphous assembly from which ad hoc task groups are convened periodically by the President. On the contrary, it is a professional corps of more than 150 employees, organized into a complex system of committees and working groups reporting ultimately to the Executive Secretary. There are separate offices, each responsible for a particular geographic region or functional area, with clearly established lines of authority both among and within the offices. The several points of tangency between the White House and the NSC staff noted by Mr. Lake do not intertwine the NSC with "the President's immediate personal staff " in any way that obscures the line of perforation between the NSC and other units in the EOP; in fact, all of the individuals holding titles on both the NSC and White House staffs are in a non-substantive area, public affairs. We conclude that the NSC has a structure sufficiently self-contained that the entity could exercise substantial independent authority. The remaining question is whether the NSC does in fact exercise such authority. We approach that question, as we did in Meyer, by considering how close the operation of the NSC is to that of the presidency, and by examining the nature of such authority as has been delegated to the NSC.</p></div> <div class="numbered-paragraph"><p> 2. The Proximity of the NSC to the President</p></div> <div class="facLinkUnit"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACHorizontalLU1 */ google_ad_slot = "8326071194"; google_ad_width = 728; google_ad_height = 15; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> Armstrong concedes that the NSC is "proximate" to the President, but he could hardly do otherwise: The President chairs the statutory Council, and his National Security Adviser, working in close contact with and under the direct supervision of the President, controls the NSC staff. The intimate organizational and operating relationship between the President and the NSC is, in our view, entitled to significantly greater weight in evaluating the NSC's arguable status as an agency than is the self-contained structure of the entity. Accordingly, Armstrong must make a strong showing indeed regarding the remaining factor under Meyer before we can conclude that the NSC exercises substantial authority, independent of the President.</p></div> <div class="numbered-paragraph"><p> 3. The Nature of the Authority Delegated to the NSC</p></div> <div class="numbered-paragraph"><p> The Government's position is, as it must be, that neither the Congress nor the President has delegated any function to the NSC other than that of advising and assisting the President. We consider first the question of congressional delegation.</p></div> <div class="numbered-paragraph"><p> Under the National Security Act, the NSC is authorized to: (a) advise the President upon national security matters; (b) coordinate the policies and functions of other departments and agencies regarding national security matters; (c) assess and appraise the objectives and commitments of, and the risks facing, the United States; (d) consider policies on national security matters; and (e) make recommendations to the President. 50 U.S.C. Section(s) 402(a)-(b). The Government deems it self-evident that these statutory provisions do not by themselves authorize the NSC to perform any non-advisory function.</p></div> <div class="numbered-paragraph"> <p> Armstrong's only argument to the contrary is based upon a section of the Act providing that the Director of Central Intelligence acts "[u]nder the direction of the National Security Council" and "as the President or the National Security Council may direct." 50 U.S.C. Section(s) 403-3(a)(1), 403(c)(6). Armstrong maintains that this provision (as "reinforced" by Executive Order 12,333) delegates independent authority to the NSC. As we understand it, however, the statute delegates authority not to the institutional NSC but to the President and the statutory Council headed by the President. A member of the Council acts not as the head of his or her department but as an adviser or assistant to the President. 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