Whether the Office of the Vice President Is an "Agency" for Purposes of the Freedom of Information Act ( 1994 )

Whether the Office of the Vice President is an “Agency” for
Purposes of the Freedom of Information Act
T h e O ffice o f th e V ice P re s id e n t is n o t an “a g e n c y ” fo r p u rp o se s o f th e F re e d o m o f In fo rm a tio n A ct
February 14, 1994
M e m o r a n d u m O p in io n f o r t h e
C o u n s e l a n d D ir e c t o r o f A d m in is t r a t io n
O f f ic e o f t h e V i c e P r e s i d e n t
This m em orandum responds to your request for the opinion of the Office of Le­
gal Counsel as to w hether the Office o f the Vice President (“O V P”) is an “agency”
for purposes o f the Freedom o f Information Act, 5 U.S.C. § 552 (“FOIA”). For the
reasons set forth below, we conclude that it is not.
The FO IA definition of “agency” includes an “establishm ent in the executive
branch of the G overnm ent (including the Executive Office o f the President).” Id. §
552(f)(1)- Relying on the conference com m ittee report explaining the 1974
am endm ent to the definition, the Supreme Court has held that the term “agency”
does not cover ‘“ the P resident’s immediate personal staff or units in the Executive
Office w hose sole function is to advise and assist the President.’” K issinger v.
R ep o rters Comm, f o r F reedom o f the P ress, 445 U.S. 136, 156 (1980) (quoting
H.R. Conf. Rep. No. 93-1380, at 15 (1974)).
As a threshold matter, we note that a court might decide that the OVP, which is
only a sm all personal staff for the V ice President, does not even qualify as an
“establishm ent.” W e believe that is a reasonable position, although the law is un­
settled as to the definition o f “establishm ent.” There is no need to rely on that po­
sition, however, because in our opinion the following analysis, based on case law,
definitively establishes that the OVP is not an “agency.”
The O V P clearly satisfies the Supreme C ourt’s “sole function” test, because the
Vice President and his staff do not have “substantial independent authority in the
exercise of specific functions,” Soucie v. D avid, 448 F.2d 1067, 1073 (D.C. Cir.
1971), but rather have the sole function o f advising and assisting the President.
See g en era lly M eyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993). The Vice
President has no constitutional or statutory responsibilities as an executive branch
officer,1 and the com m on understanding that his executive role is limited to advis­
ing and assisting the President (as determ ined by each President) is confirmed by
the statute authorizing appropriations and other assistance and services for the Vice
1 T h e re is no need, o f course, to consider th e Vice P resid e n t's responsibilities as the President o f the
S enate, see U S C onst art I. § 3, cl. 4, because the FO IA does not apply to C ongress.
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W h e th e r th e O ffic e o f th e V ice P r e s id e n t is a n " A g e n c y "
fo r P u r p o s e s o f th e F r e e d o m o f In fo r m a tio n A c t
President: “In order to enable the Vice President to provide assistance to the
President in connection with the performance of functions specially assigned to the
Vice President by the President in the discharge of executive duties and responsi­
bilities.” 3 U.S.C. § 106(a).2
Indeed, because of the constitutional status of the Vice President, a court might
decide that it is not even necessary to consider whether the OVP satisfies the “sole
function” test. In holding that the President is not an agency for purposes of the
Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), the Supreme Court
adopted an “express statement” rule:
The President is not explicitly excluded from the A PA ’s purview,
but he is not explicitly included, either. Out of respect for the sepa­
ration o f powers and the unique constitutional position of the Presi­
dent, we find that textual silence is not enough to subject the
President to the provisions o f the APA. We would require an ex­
press statement by Congress before assuming it intended the Presi­
dent’s performance of his statutory duties to be reviewed for abuse
o f discretion.
Franklin v. M assachusetts , 505 U.S. 788, 800-01 (1992). Because the Vice Presi­
dent is also a constitutional officer, see U.S. Const, art. II, § 1, cl. 1, the same
“express statement” rule should apply in the present context, which would neces­
sitate an express reference to the Vice President rather than the general
“establishment in . . . the Executive Office of the President” formulation. Thus, the
absence o f such an express statement in the FOIA definition of “agency” requires
the conclusion that Congress did not intend to subject the Vice President and his
Office to the FOIA.
The understanding that the Vice President and his staff, like the President and
his staff, are outside the coverage of the FOIA is confirmed by the treatment of the
OVP under the Presidential Records Act, 44 U.S.C. §§ 2201-2207 (“PRA ”).
These two statutes are “in pari materia” and should be construed together. The
PRA covers all EOP records that are not covered by the FOIA. See H.R. Rep. 95-
* T he O V P thus appears to present alm ost as straightforw ard and sim ple a case as the O ffice o f the P resi­
dent (i e , the W hite H ouse O ffice) w ith respect to satisfy in g the ' ‘sole function” test “T he legislative history
[of F O IA ’s ‘agency* definition] is unam biguous in explaining that the ‘Executive O ffic e ’ does not in ­
clude the O ffice o f the President ” K issinger, 445 U .S. at 156 (holding that H enry K issinger’s notes in c a ­
pacity o f A ssistant to the President w ere not “ agency records” ) M ore difficult questions are presented by the
larger Executive O ffice o f the President (“ EO P’’) units with m ore diverse responsibilities, such as the C o u n ­
cil on Environm ental Q uality, which has been held to be a FO IA agency, see P acific Legal F ound v. C ouncil
on E nvtl Q uality, 636 F.2d 1259 ( D C C ir 1980), o r the N ational Security C ouncil (“ N SC ’’), the FO IA
status o f w hich is being litigated, see A rm strong v Executive O ffice o j P resident, I F 3d (274, 1296 (D .C
C ir 1993), and which this O ffice has recently opined is not a FO IA agency, see M em orandum for A lan J
K reczko, Special A ssistant to the President and Legal A dviser, N SC, from W alter D ellinger, A cting A ssistant
A ttorney G eneral, O ffice o f Legal C ounsel, Re Sta tu s oj N S C as an "A g e n c v ” under FOIA (S ept. 20, 1993).
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O pinions o f the O ffice o f L egal C ounsel
1487, at 3 (1978) (“The definition of Presidential records was designed to encom ­
pass those records which currently fall outside the scope of the [FOIA].”) reprin ted
in 1978 U .S.C.C.A .N . 5732, 5734; 44 U.S.C. § 2 2 0 l(2)(B)(i) (“Presidential rec­
ords” do not include “official records o f an agency (as defined in [the FO IA ]).”).
The PRA contains an express statement that O VP records are presidential records
rather than agency records. 44 U.S.C. § 2207 (“Vice-Presidential records shall be
subject to the provisions o f this chapter in the same manner as Presidential rec­
o r d s ”). See g en era lly Arm strong v. Bush, 924 F.2d 282, 286 n.2 (D.C. Cir. 1991)
(explaining that com ponents o f the E O P fall into two categories — those that cre­
ate presidential records subject to the PRA and those that create federal (i.e.,
agency) records subject to the Federal Records Act and the FOIA; OVP is in for­
m er category).
For the foregoing reasons, we conclude that the Office of the Vice President is
not an “agency” for purposes of the Freedom o f Information Act.
W ALTER DELLINGER
A ssista n t A ttorney G eneral
O ffice o f L egal Counsel
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