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FOIA Update: OIP Guidance: The Timing of New E.O. Applicability

FOIA Update
Vol. XVI, No. 2

OIP Guidance

The Timing of New E.O. Applicability

With the issuance of new Executive Order No. 12,958, governing the classification of government information on national security grounds, all federal agencies holding classified information will have to deal with the transition from one executive order to the next. When E.O. 12,958 takes effect on October 14, 1995, it will entirely supersede existing E.O. 12,356, just as its predecessor executive orders were superseded on April 2, 1982 (E.O. 12,065) and on December 1, 1978 (E.O. 11,652), for example.

At the time of such transitions, questions often arise about the applicability of successive executive orders to records that are in various stages of administrative or litigative handling as of the new executive order's effective date. Such questions have been dealt with by the courts in connection with the previous two executive order transitions.

Litigation Precedents

The first Freedom of Information Act case to examine such a question of executive order applicability dealt with a relatively simple one. In Lesar v. United States Dep't of Justice, 636 F.2d 472 (D.C. Cir. 1980), the documents at issue were classified under E.O. 11,652 (which was issued by President Nixon in 1972), and the district court upheld classification on the basis of that order. See Lesar v. United States Dep't of Justice, 455 F. Supp. 921, 925 (D.D.C. 1978). Soon after, President Carter issued E.O. 12,065, whereupon the FOIA requester sought to have the case remanded in order to gain any benefit of the new executive order. See 636 F.2d at 480. The D.C. Circuit refused to do so, however, reasoning that because E.O. 12,065 contained a standard provision that enabled agencies to "carry over" classification actions from predecessor orders, the "obvious implication" was that courts should review Exemption 1 cases "according to the Executive Order in effect at the time classification took place." Id. It therefore upheld the agency's classification under E.O. 11,652, even though that order had been superseded by the time of its decision.

A somewhat different situation was presented in Baez v. United States Dep't of Justice, 647 F.2d 1328 (D.C. Cir. 1980), which also involved the transition from the Nixon order to the Carter order. In that case, the defendant agencies chose to reevaluate the classified documents under the new order during the course of the district court litigation and then found continued classification to be warranted. See 647 F.2d at 1333. In affirming this action, the D.C. Circuit observed that of course an agency "should be permitted to reassess its classification determination" under a newly issued executive order if it chooses to do so. Id. at 1334; see also Miller v. United States Dep't of State, 779 F.2d 1378, 1388 (8th Cir. 1985) (agency chose to reevaluate under new E.O. 12,356); Military Audit Project v. Casey, 656 F.2d 724, 737 & n.41 (D.C. Cir. 1981) (agency chose to reevaluate under new E.O. 12,065).

In 1983, the D.C. Circuit faced the transition from the Carter executive order to the Reagan one, and it found it necessary to augment the rule that it had established in Lesar. In Afshar v. Department of State, 702 F.2d 1125, 1135 (D.C. Cir. 1983), the records at issue were processed under E.O. 12,065, which contained a public interest "balancing" provision that arguably was not satisfied by the agency's classification action. After oral argument on appeal, President Reagan issued E.O. 12,356, which contained no such "balancing" provision. See 702 F.2d at 1135. The requester argued that the case should be remanded for application of the "balancing" provision of E.O. 12,065, even though that order had been superseded, simply because that was the order in effect when the classification action took place. See id. However, the D.C. Circuit held that courts should not require an agency to reassess its classification decision "under the now defunct provisions" of an old executive order. Id. at 1136-37. Rather, it stressed that "the practical realities of the situation" compel against remands in such FOIA cases. Id. at 1137-38 n.18.

"Two-tiered" Approach

As the D.C. Circuit later explained further in King v. Department of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987), courts necessarily must apply a "two-tiered" approach to executive order applicability, depending on whether a remand for any further agency classification action is involved:

. . . This approach is "bottomed on considerations of efficiency" and allows agencies to apply existing executive orders without concern for the development of any undue litigation complications with the passage of time. Id. at 216. Otherwise, both agencies and courts could face "an endless cycle of judicially mandated reprocessing" under superseding executive orders. Bonner v. United States Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991).

These litigation precedents on issues of executive order applicability can be taken by federal agencies as firm guides to sound administrative practice as they make the transitionfrom E.O. 12,356 to E.O. 12,958 for FOIA purposes as of October 14, 1995. The new executive order contains the same type of "carry-over" provision that formed the basis for the D.C. Circuit's fundamental rule in Lesar -- see E.O. 12,958, Sec. 1.1(c) -- and it is entirely compatible with the D.C. Circuit's "two-tiered" approach overall. In short, there is no reason for courts to apply any different rule or approach to the transition process this time around. See, e.g., Lesar, 636 F.2d at 480 ("To hold otherwise . . . would not only place a heavy administrative burden on the agencies but would also cause additional delays in the ultimate processing of these types of FOIA requests.").


In sum, agencies should be guided by the following basic rules of executive order transition in their administration of Exemption 1 this year: (1) when undertaking a classification action, or considering a requested record for possible declassification and disclosure (either at the initial level or on administrative appeal), apply the executive order that is in effect at that time; (2) when defending a prior Exemption 1 withholding in litigation after October 14, 1995, remember that an agency may make an entirely discretionary reevaluation under E.O. 12,958; and (3) for ongoing litigation cases, remember that such prior classification actions can properly be defended on the basis of E.O. 12,356, both in district court and on any judicial appeal, so long as the classification judgment at issue was reached under E.O. 12,356.

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Updated August 13, 2014