Friday, March 1, 2013
Re: Request for copies of the Financial Crisis Inquiry Commission's (FCIC) records transferred to NARA Disposition: Granting defendant's motion to dismiss because the Commission's records are not agency records subject to the FOIA
- Agency records: The court holds that the records of the FCIC, a temporary body established within the legislative branch, that were transferred to NARA are not agency records subject to the FOIA under either the control test or the broad rule proposed by NARA. Applying the four factors of the control test, the court first notes that FCIC intended to retain control of the records. When the records were transferred to NARA, the chairman of the Commission sent a letter that "specifically stated that 'the FOIA will not apply to Commission records even after they are transferred to NARA.'" In addition, the form which transferred the documents, SF-258, "expressly incorporated [the chairman's] letter and, along with it, these restrictions on disclosure." The court further notes that the form was "hand annotated to remove the reference to FOIA, and the parties answered 'no' to the question in Box 12 of the form, which asked whether the records transferred were to be fully available for public use." Second, the court finds that "NARA does not have wide discretion in its use and disposal of the FCIC records because of the specific limiting instructions placed on the records at the time they were transferred." Third, the court finds that there is no evidence that agency personnel read or relied upon the records as required by the control test "since NARA is merely a repository, and its personnel do not act in reliance on these types of documents." Finally, while there is an argument that the records were integrated into NARA's system because they were deposited with NARA for "categorization and safekeeping," this is not enough to outweigh the other three factors. The court accordingly concludes that "FCIC's documents are not 'agency records' subject to FOIA." Although the court ultimately decides it need not endorse NARA's broad "per se rule that congressional records transferred to [it] retain their legislative character, and thus remain exempt from FOIA," it does agree that "[a]s the repository for federal records of all kinds – including ones from the judicial and legislative branches – NARA does not 'possess' documents in the same manner as other executive agencies." The court acknowledges that case law concerning the transfer of presidential records, both the Presidential Recordings and Materials Preservation Act and the Presidential Records Act, as well as NARA's own regulations support the idea that mere transfer of records to NARA does not make them subject to the FOIA. Ricchio v. Kline, 773 F.2d 1389 (D.C. Cir. 1985) specifically held that the transfer of President Nixon's records did not make them subject to the FOIA. Additionally, under the Presidential Records Act, records do not become subject to the FOIA for at least five years after transfer. Finally, when revising its regulations, NARA "explicitly rejected the idea that 'all records in . . . [its] custody . . . should be governed by FOIA . . . including the records of Congress and judicial branch records that have been deposited with NARA for preservation.'" The final regulations also made clear that transfer of congressional and court records does not make those records subject to the FOIA. Thus, even outside the common control test, the court finds that there is support for the idea that the FCIC's records are not Executive Branch records for FOIA purposes. As the court opines, "because NARA's exclusive function is to store and maintain records, its mere possession and processing of the documents would reveal nothing about its decisionmaking processes, a key objective of FOIA."
Updated August 6, 2014