Cause of Action v. NARA, No. 13-5127, 2014 WL 2135977 (D.C. Cir. May 23, 2014) (Randolph, S. J.)

Cause of Action v. NARA, No. 13-5127, 2014 WL 2135977 (D.C. Cir. May 23, 2014) (Randolph, S. J.)

Re: Request for records prepared by Financial Crisis Inquiry Commission

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Procedural Requirements, Agency Records:  The court explains that "[t]he issue in this case is whether the Commission's records, exempt from FOIA while the Commission produced, retained and relied upon those documents, became subject to FOIA when the Commission turned its records over to the Archives."  The court notes that "[g]iven the difficulties with the Burka test, [it has] 'indicated that the standard, four-factor control test does not apply to documents that an agency has either obtained from, or prepared in response to a request from, a governmental entity not covered by FOIA.'"  Additionally, the court relates that "[a]lthough [it], too, will not use the Burka test, [the court] do[es] not think it makes sense to apply the analysis from Judicial Watch II."  The court explains that "[l]ike the four-factor test, the Judicial Watch II test also measures 'control' in a way that is foreign to the sui generis nature of the Archives."  The court explains that "[a]lthough [it has] never explicitly held that transferring a document to the Archives does not affect the document's FOIA status, [the court] suggested as much in Katz v. National Archives & Records Administration."  The court notes that "[t]he Archives does not use documents created in the three branches in any operational way, or indeed in any way comparable to any other federal agency."  "It may control them in a sense, but its control consists in cataloguing, storing, and preserving, not unlike a 'warehouse.'"  "Ultimately [the court finds that it is] dealing with a question of statutory interpretation and congressional intent."  "FOIA does not define 'agency records,' but [the court is] confident that Congress did not intend to expose legislative branch material to FOIA simply because the material has been deposited with the Archives."