FOIA Update: FOIA Counselor: Transition Team FOIA Issues

January 1, 1988

FOIA Update
Vol. IX, No. 4
1988

FOIA Counselor


Transition Team Issues

Every four or eight years, when there is a change in presidential administrations, certain Freedom of Information Act questions arise in connection with that process. Immediately upon a new President's election, he selects a "transition team" to assist him in "promot[ing] the orderly transfer of the executive power," so as to "assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government." Presidential Transition Act of 1963, Pub. L. No. 88-277, § 2, 78 Stat. 153 (codified at 3 U.S.C. § 102 note (1976)). While transition team efforts present a President-elect with a wide range of policy issues to be confronted, they can give rise to several unique FOIA issues as well.

The FOIA questions most frequently presented concern whether transition teams are executive agencies; whether transition documents retained by transition team members who become agency officials are "agency records"; whether the deliberative process privilege under Exemption 5, 5 U.S.C. § 552(b)(5), is applicable to agency communications with a transition team; and whether disclosure of FOIA-exempt records to a transition team results in a waiver of their exempt status.

Nonagency Status of Transition Teams

First and foremost, it seems quite clear that transition teams are not federal agencies subject to the FOIA. The Act applies only to "agencies" of "the executive branch of the Government," including the independent regulatory agencies. 5 U.S.C. § 552(f). To be sure, the expenses of a transition team are federally funded. See 3 U.S.C. § 102 note,amended by Presidential Transitions Effectiveness Act, Pub. L. No. 100-398, § 6, 102 Stat. 985 (1988) (providing authorization and appropriation of up to $3.5 million for transition team expenses). However, it is executive branch control, not mere funding, that determines whether an entity is an "agency" for purposes of the FOIA. See Forsham v. Harris, 445 U.S. 169, 182 (1980) (autonomy of grantee of federal funds precludes "agency" status under FOIA).

In the only case to focus directly on this point, it was observed that the transition team enabling legislation "manifests a congressional concern with preserving the autonomy of the transition staff from the federal government." Illinois Inst. for Continuing Legal Educ. v. Department of Labor, 545 F. Supp. 1229, 1232 (N.D. Ill. 1982). Because "[t]he transition staff is clearly not in the control of the incumbent President [and] answers only to the President-elect," the Court found that "[a]s such, the staff is outside of the executive branch, since 'the Executive Power is vested in a President of the United States of America,' U.S. Const. art. II, § 1, and the transition staff is outside the control of the President." Id. This autonomy compels the conclusion that a transition team "is not within the executive branch of government and hence not an 'agency' within the meaning of . . . the FOIA." Id. at 1232-33.

Transition Team Documents as "Personal Records"

A complication can arise, however, when a member of a transition team brings copies of transition team documents with him to a federal agency when appointed as an agency official. In both of the FOIA cases in which requesters have sought such documents, the courts held that they were not "agency records" under the Act but rather were the "personal records" of the former transition employees. See Wolfe v. HHS, 711 F.2d 1077, 1080 (D.C. Cir. 1983) (document did not lose "its private character simply upon arrival within the agency building"); Illinois Inst. for Continuing Legal Educ. v. Department of Labor, 545 F. Supp. at 1234 ("To be 'agency records,' something more than mere possession of the records by an agency official must be shown.").

An element in each of those cases, though, was that the documents had never been integrated into the agency's files and were not formally used by the official who possessed it or by anyone else in conducting official agency business. See Wolfe v. HHS, 711 F.2d at 1081 ("no one [else] in the agency ever read or relied upon these documents"); Illinois Inst. for Continuing Legal Educ. v. Department of Labor, 545 F. Supp. at 1235 (document never was "actually used by an agency official"). The dicta statements in these cases suggest that had the documents been used not merely for personal reference, but rather to conduct agency business, they might have been found to be "agency records." See also FOIA Update, Fall 1984, at 4.

Applicability of Exemption 5

The fact that a transition team is not a part of the executive branch presents an interesting issue with respect to the applicability of Exemption 5 to deliberative materials drafted by agency personnel for a transition team's use. (In this context, it is essential to distinguish between agency employees who continue to work for their federal agency and those who, under Section 3 of the Transition Act, are detailed to a transition team and who therefore are not generally regarded as agency employees. For the purpose of this discussion, detailees are not considered to be agency employees.) The concern here results from Exemption 5's awkward threshold language (covering "inter-agency or intra-agency memorandums or letters"), a requirement which might at first seem to preclude the exemption's applicability to communications between agencies and transition teams.

However, most courts have sought to further the vital consultative purposes of the deliberative process privilege by adopting a "functional," or "common sense," approach to this threshold in order to protect advice received by agencies from outside entities. See, e.g., Department of Justice v. Julian, 108 S. Ct. 1606, 1616 n.1 (1988) (Scalia, J. dissenting) (issue not reached by majority); Durns v. Bureau of Prisons, 804 F.2d 701, 704 n.5 (D.C. Cir.), reh'g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986), cert. granted, judgment vacated on other grounds & remanded, 108 S. Ct. 2010 (1988); Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980); see also FOIA Update, June 1982, at 10 (citing additional cases). But see also FOIA Update, Summer 1987, at 5 (citing both supporting and contrary cases).

While the case law is not nearly so extensive regarding the applicability of Exemption 5's threshold requirement to recommendations flowing from an agency to outside entities, see, e.g., FOIA Update, Spring 1983, at 5 (discussing cases relating to agency advice to Congress); see also Paisley v. CIA, 712 F.2d 686, 699 n.54 (D.C. Cir. 1983), motion to intervene granted, reh'g granted & vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984), the same basic policy concerns strongly suggest that such advice simply would not be given -- or at least not so candidly -- if it were not protectible under the FOIA.

Indeed, it is difficult to imagine a more compelling policy justification for protecting the confidentiality of agency-generated advice to a nonagency than facilitation of the relationship between senior agency officials of an outgoing administration and the members of a President-elect's transition team. Any threat of premature disclosure or other inhibition of the candid policy recommendations between agencies and transition teams would greatly impair the quality of transition efforts.

This is further reinforced by Section 2 of the Transition Act, which sets out the statute's congressional purpose, where it is specifically provided that "it is the intent of the Congress that appropriate actions be authorized and taken to avoid or minimize any disruption" which might be "occasioned by the transfer of the executive power." 3 U.S.C. § 102 note. Most certainly, the legislative purpose of promoting a smooth transition of executive power would be frustrated if Exemption 5's threshold were not given a sufficiently flexible interpretation so as to afford the confidentiality necessary for candid and effective agency/transition team communications.

No Waiver Consequences

The final FOIA issue that can arise from the relationship between an agency and transition team is whether any FOIA exemption that applies to pre-existing agency records can be deemed to be waived when the agency makes disclosures -- either by merely permitting review of the records or by providing actual photocopies -- to transition team personnel. This question, too, presents itself only because a transition team is not part of the executive branch. (With the possible, narrow exception of records protected by the attorney-client privilege, see FOIA Update, Spring 1985, at 4, the dissemination of a record to another federal agency within the executive branch raises no true issue of waiver under the FOIA. See FOIA Update, Spring 1983, at 6.)

With respect to records disseminated to nonagency entities, the FOIA case law has consistently held that a waiver of exemption applicability does not result where the disclosure fosters a legitimate governmental purpose. Id.; see, e.g., Shermco Indus. v. Secretary of the Air Force, 613 F.2d 1314, 1320-21 (5th Cir. 1980) (disclosure to Government Accounting Office); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976) (disclosure to an advisory committee); Aspin v. Department of Defense, 491 F.2d 24, 26 (D.C. Cir. 1973) (disclosure to congressional committee). Because the very purpose of a disclosure to a transition team is to implement the statutory mandate "to promote the orderly transfer of the executive power," such a disclosure could not reasonably be found to waive any applicable FOIA exemption.

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