ACLU v. CIA ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2016 Decided May 13, 2016
No. 15-5183
AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL
LIBERTIES UNION FOUNDATION,
APPELLANTS
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01870)
Hina Shamsi argued the cause for appellants. With her
on the briefs was Arthur B. Spitzer.
Susanne Peticolas was on the brief for amicus curiae
Senator John D. Rockefeller IV in support of appellants.
Thomas G. Pulham, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Douglas N. Letter and Matthew M. Collette,
Attorneys.
2
Before: TATEL and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The Freedom of
Information Act (“FOIA” or “Act”), subject to certain
statutory exemptions, requires federal agencies to make
agency records available to the public upon reasonable
request. 5 U.S.C. § 552(a)(3)(A); see id. § 552(b)(1)-(9).
Congress is not an “agency” under FOIA and, therefore,
congressional documents are not subject to FOIA’s disclosure
requirements. See id. §§ 551(1)(A), 552(f). When Congress
creates a document and then shares it with a federal agency,
the document does not become an “agency record” subject to
disclosure under FOIA if “Congress [has] manifested a clear
intent to control the document.” Judicial Watch, Inc. v. U.S.
Secret Serv., 726 F.3d 208, 221 (D.C. Cir. 2013) (quoting
United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C.
Cir. 2004)).
The dispute in this case concerns an attempt by the
American Civil Liberties Union and American Civil Liberties
Union Foundation (jointly, “Appellants”) to invoke FOIA to
obtain a copy of a report authored by the Senate Select
Committee on Intelligence (“Committee”). In 2009, as a part
of its oversight of the intelligence community, the Senate
Committee announced that it would conduct a comprehensive
review of the program of detention and interrogation formerly
run by the Central Intelligence Agency (“CIA”). Before the
review commenced, the Senate Committee and officials at the
CIA negotiated arrangements to deal with access to classified
materials by Senators and their staff, and agreed on rules
regarding the Committee’s control over its work product.
3
These arrangements and rules were memorialized in a June 2,
2009, letter (“June 2009 Letter”) sent by the Chairman and
Vice Chairman of the Senate Committee to the CIA Director,
which provided, inter alia, that
Any . . . notes, documents, draft and final
recommendations, reports or other materials generated by
Committee staff or Members, are the property of the
Committee . . . . These documents remain congressional
records in their entirety and disposition and control over
these records, even after the completion of the
Committee’s review, lies exclusively with the
Committee. As such, these records are not CIA records
under the Freedom of Information Act or any other law.
In 2014, after completing its review and receiving
comments and proposed edits from the Executive Branch, the
Committee produced a Committee Study of the CIA’s
Detention and Interrogation Program. The end product
included a 6,000-plus page investigative report (“Full
Report”) and a 500-plus page Executive Summary. The
Committee transmitted copies of the final Full Report and
Executive Summary to the President, as well as to officials at
the CIA, Department of Defense, Department of Justice, and
Department of State (collectively, “Appellees”). The
Executive Summary, but not the Full Report, was publicly
released by the Committee. The Committee made it clear that
it alone would decide if and when to publicly release the Full
Report. Appellants filed FOIA requests with Appellees
seeking disclosure of the Full Report. These requests were
denied on the ground that the Full Report is a congressionally
generated and controlled document that is not subject to
disclosure under FOIA. Appellants filed suit in the District
Court to compel disclosure, but their action was dismissed by
4
the court for lack of jurisdiction. Appellants now appeal the
decision of the District Court. We affirm.
Appellants’ principal claim is that the Senate Committee
relinquished control over the Full Report when it sent the
document to the President and officials at the Appellees’
agencies in December 2014. According to Appellants, when
an agency has been given possession of a document created
by Congress, the document is presumptively an agency record
unless Congress has clearly expressed its intent to control the
document. In Appellants’ view, Appellees cannot establish a
clear assertion of congressional control with respect to the
Full Report because it was disseminated to Appellees without
any restrictions. We disagree. The June 2009 Letter manifests
a clear intent by the Senate Committee to maintain continuous
control over its work product, which includes the Full Report.
Therefore, the Full Report always has been a congressional
document subject to the control of the Senate Committee. The
mere transmission of the Full Report to agency officials for
their consideration and use within the Executive Branch did
not vitiate the command of the June 2009 Letter or constitute
congressional relinquishment of control over the document.
I. BACKGROUND
A. The Senate Committee’s Oversight Review and
Production of the Full Report
In March 2009, the Senate Select Committee on
Intelligence announced that it would conduct an oversight
review of the CIA’s highly controversial, but then-defunct,
detention and interrogation program. The review
contemplated by the Committee could not be completed
unless Senators and their staff had access to millions of pages
of CIA documents containing highly sensitive and classified
5
information. Because of the concerns regarding classified
materials, the members of the Committee and officials at the
CIA negotiated special arrangements to allow the Senate
Committee to undertake a comprehensive review while
respecting the President’s constitutional authorities over
classified information. These arrangements were
memorialized in the aforementioned June 2, 2009, letter from
the Senate Committee Chairman and Vice Chairman to the
CIA Director, setting forth “procedures and understandings”
governing the Senate Committee’s review.
The letter indicated that the Senate Committee would
conduct its review of CIA records in a secure electronic
reading room at a CIA facility. The CIA agreed to create a
segregated network drive at the CIA facility where Senate
personnel could prepare and store their work product. And, at
the insistence of the Senate Committee, the letter also
included clear terms regarding control of the Senate
Committee’s work product. On this point, the letter stated:
Any documents generated on the network drive
referenced in paragraph 5, as well as any other notes,
documents, draft and final recommendations, reports or
other materials generated by Committee staff or
Members, are the property of the Committee and will be
kept at the Reading Room solely for secure safekeeping
and ease of reference. These documents remain
congressional records in their entirety and disposition and
control over these records, even after the completion of
the Committee’s review, lies exclusively with the
Committee. As such, these records are not CIA records
under the Freedom of Information Act or any other
law. . . . If the CIA receives any request or demand for
access to these records from outside the CIA under the
Freedom of Information Act or any other authority, the
6
CIA will immediately notify the Committee and will
respond to the request or demand based upon the
understanding that these are congressional, not CIA,
records.
Letter from Dianne Feinstein, Chairman, Senate Select
Comm. on Intelligence, and Christopher S. Bond, Vice
Chairman, Senate Select Comm. on Intelligence, to Leon
Panetta, Director, CIA (June 2, 2009) (“June 2009 Letter”), at
¶ 6, Joint Appendix (“J.A.”) 93-94. Pursuant to the terms of
the June 2009 Letter, the Senate Committee drafted initial
versions of its report on the CIA’s segregated network drive.
As the drafting process progressed, however, the Senate
Committee worked with the CIA to transfer portions of the
report from the segregated network drive to the Senate
Committee’s secure facilities at the United States Capitol.
This arrangement allowed the Senate Committee to complete
the drafting process in its own workspace.
On December 13, 2012, the Senate Committee approved
the initial draft of the Committee Study of the CIA’s Detention
and Interrogation Program. This version of the Committee’s
work included drafts of the 6,000-plus page Full Report and
the 500-plus page Executive Summary. The Senate
Committee sent the drafts to an approved list of individuals in
the Executive Branch for the limited purpose of eliciting their
comments and proposed edits.
On April 3, 2014, after revising the drafts in response to
the feedback received from the Executive Branch, the Senate
Committee voted to approve updated versions of the Full
Report and the Executive Summary. The Committee then
voted to send only the updated Executive Summary to the
President for declassification review. Over the next several
months, the Senate Committee and the Executive Branch
7
engaged in further discussions regarding the processing of the
Executive Summary. The Senate Committee also continued to
edit both the Executive Summary and the Full Report. On
December 9, 2014, after the Director of National Intelligence
declassified a minimally redacted version of the Executive
Summary, the Senate Committee publicly released that
document. The Chairman’s Foreword to the Executive
Summary noted that the Full Report was final, but that the
Senate Committee was not publicly releasing the Full Report.
In the days following the public release of the Executive
Summary, the Senate Committee sent copies of the Full
Report to the President, as well as to specified officials at the
CIA, Department of Defense, Department of Justice, and
Department of State, i.e., the Appellees in this case. The
Senate Committee’s transmission of the Full Report to the
President included a letter from Senate Committee Chairman
Dianne Feinstein. The letter, dated December 10, 2014, stated
that
the full report should be made available within the CIA
and other components of the Executive Branch for use as
broadly as appropriate to help make sure that this
experience is never repeated. To help achieve that result,
I hope you will encourage use of the full report in the
future development of CIA training programs, as well as
future guidelines and procedures for all Executive Branch
employees, as you see fit.
Letter from Dianne Feinstein, Chairman, Senate Select
Comm. on Intelligence, to President Barack Obama (Dec. 10,
2014) (“December 2014 Letter”), J.A. 133.
In January 2015, the Chairmanship of the Senate
Committee passed from Senator Feinstein to Senator Richard
8
Burr. On January 14, 2015, Senator Burr sent a letter to the
President saying that he considered the Full Report to be “a
highly classified and committee sensitive document,” and he
requested that “all copies of the full and final report in the
possession of the Executive Branch be returned immediately
to the Committee.” Letter from Richard Burr, Chairman,
Senate Select Comm. on Intelligence, to President Barack
Obama (Jan. 14, 2015), J.A. 136. Senator Feinstein, who was
then Vice Chairman of the Committee, disagreed with Senator
Burr, and she “ask[ed] that [the President] retain the full
6,963-page classified report within appropriate Executive
branch systems of record, with access to appropriately cleared
individuals with a need to know.” Letter from Dianne
Feinstein, Vice Chairman, Senate Select Comm. on
Intelligence, to President Barack Obama (Jan. 16, 2015), J.A.
139. We are unaware of any further correspondence on the
matter.
B. Appellants’ FOIA Requests and Initiation of this
Lawsuit
In February 2013, Appellants filed a FOIA request with
the CIA seeking “disclosure of the recently adopted [Senate
Committee] report . . . relating to the CIA’s post-9/11
program of rendition, detention, and interrogation.” The CIA
promptly denied the request, characterizing the then-initial
draft version of the Full Report as a “Congressionally
generated and controlled document that is not subject to the
FOIA’s access provisions.”
Appellants filed suit against the CIA in November 2013,
seeking to compel disclosure of the Full Report. Several
months later, Appellants submitted new FOIA requests to the
other Appellee agencies, seeking the Full Report as it existed
when the Committee voted to send the Executive Summary to
9
the President for declassification review. Appellants then filed
an amended complaint with the District Court based on these
new requests and added the other agencies as defendants in
the lawsuit. The parties and the District Court then agreed that
Appellants’ amended complaint referred to the Full Report
that was transmitted to Appellees after the Executive
Summary was released.
In January 2015, Appellees moved to dismiss Appellants’
suit under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction, contending that the Full Report is
a congressional record beyond the reach of FOIA. Appellants
opposed the motion, arguing that the Full Report became an
“agency record” subject to disclosure when it was transmitted
from the Senate Committee to Appellees in December 2014.
The District Court granted Appellees’ motion to dismiss, and
Appellants now appeal.
II. ANALYSIS
We review de novo the District Court’s grant of
Appellees’ motion to dismiss for lack of subject matter
jurisdiction. See Judicial Watch, Inc. v. U.S. Senate, 432 F.3d
359, 360 (D.C. Cir. 2005). For the reasons explained below,
we affirm the eminently well-reasoned judgment of the
District Court.
A. The Legal Framework
As noted above, subject to certain statutory exemptions,
FOIA requires federal agencies to make agency records
available to the public upon reasonable request. 5 U.S.C. §
552(a)(3)(A); see id. § 552(b)(1)-(9). The Act grants federal
district courts jurisdiction “to order the production of any
agency records improperly withheld from the complainant.”
10
Id. § 552(a)(4)(B) (emphasis added). FOIA limits access to
“agency records,” but the statute does not define the term.
Forsham v. Harris, 445 U.S. 169, 178 (1980); Judicial Watch,
726 F.3d at 215-16. Nevertheless, because it is undisputed
that Congress is not an agency, it is also undisputed that
“congressional documents are not subject to FOIA’s
disclosure requirements.” United We Stand, 359 F.3d at 597
(citing 5 U.S.C. §§ 551(1), 552(f)).
The issue in this case is whether the Senate Committee’s
Full Report became an “agency record” subject to disclosure
under FOIA when it was transmitted from Congress to the
Executive Branch. In other words, did the Full Report achieve
the status of an “agency record” once it was in the possession
of Appellees, i.e., federal agencies, who are subject to FOIA?
It is clear that “not all documents in the possession of a
FOIA-covered agency are ‘agency records’ for the purpose of
that Act.” Judicial Watch, 726 F.3d at 216. In United States
Department of Justice v. Tax Analysts, the Supreme Court
instructed that the term “agency records” extends only to
those documents that an agency both (1) “create[s] or
obtain[s],” and (2) “control[s] . . . at the time the FOIA
request is made.” Tax Analysts, 492 U.S. 136, 144-45 (1989)
(citation omitted). Thus, not all records that an agency
possesses are “agency records” under FOIA. See, e.g.,
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 157-58 (1980) (summaries of Henry Kissinger’s
telephone conversations as National Security Advisor that he
brought from the White House to the State Department);
Goland v. CIA, 607 F.2d 339, 344-48 (D.C. Cir. 1978)
(congressional hearing transcript in the possession of the
CIA), vacated in part on other grounds, 607 F.2d 367 (D.C.
Cir. 1979) (per curiam). In this case, there is no dispute that
Appellees lawfully obtained copies of the Full Report, thus
11
satisfying the first prong of Tax Analysts. The critical question
before the court is whether the Senate Committee continued
to “control” the Full Report once copies were transmitted to
the Executive Branch.
Normally, we look to four factors to determine whether
an agency has sufficient control over a document to make it
an “agency record”:
[1] the intent of the document’s creator to retain or
relinquish control over the records; [2] the ability of the
agency to use and dispose of the record as it sees fit; [3]
the extent to which agency personnel have read or relied
upon the document; and [4] the degree to which the
document was integrated into the agency’s record system
or files.
Judicial Watch, 726 F.3d at 218 (alterations in original)
(quoting Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060,
1068-69 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989)).
However, this “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: the
United States Congress.” Id. at 221. This is because “special
policy considerations . . . counsel in favor of according due
deference to Congress’ affirmatively expressed intent to
control its own documents.” Id. (ellipsis in original) (quoting
Paisley v. CIA, 712 F.2d 686, 693 n.30 (D.C. Cir. 1983),
vacated in part on other grounds, 724 F.2d 201 (D.C. Cir.
1984) (per curiam)). Thus, when an agency possesses a
document that it has obtained from Congress, the answer to
the question whether the document is an “agency record”
subject to disclosure under FOIA “‘turns on whether Congress
manifested a clear intent to control the document.’ This focus
12
renders the first two factors of the standard test effectively
dispositive.” Id. (quoting United We Stand, 359 F.3d at 596).
These principles arise from a series of decisions issued by
this court, beginning with Goland v. CIA. In that case, a FOIA
requester sought disclosure of a congressional hearing
transcript that had been released by a congressional
committee to the CIA. Goland, 607 F.2d at 342-43. The court
concluded that the transcript, which “bore the typewritten
marking ‘Secret’ on its interior cover page,” was retained by
the CIA “for internal reference purposes only.” Id. at 347. The
court explained that “Congress exercises oversight authority
over the various federal agencies, and thus has an undoubted
interest in exchanging documents with those agencies to
facilitate their proper functioning in according with Congress’
originating intent.” Id. at 346. Subjecting the transcript to
disclosure under FOIA, we said, would force Congress “either
to surrender its constitutional prerogative of maintaining
secrecy, or to suffer an impairment of its oversight role.” Id.
In light of the “circumstances attending the document’s
generation and the conditions attached to its possession,” the
court held that the CIA was “not free to dispose of the
Transcript as it wills, but holds the document, as it were, as a
‘trustee’ for Congress.” Id. at 347. Because “on all the facts of
the case Congress’ intent to retain control of the document
[wa]s clear,” we ruled that the transcript was “not an ‘agency
record’ but a congressional document to which FOIA does not
apply.” Id. at 348.
The Goland analysis was followed in later cases, some of
which found that the contested documents were subject to
disclosure under FOIA “because Congress had not clearly
expressed an intent to retain control over them.” Judicial
Watch, 726 F.3d at 221. For example, in Holy Spirit Ass’n for
the Unification of World Christianity v. CIA, a FOIA
13
requester sought documents that had come into the possession
of the CIA containing “correspondence and memoranda
originated by one of four congressional committees that
investigated various aspects of Korean-American relations
between 1976 and 1978.” Holy Spirit, 636 F.2d 838, 839-840
(D.C. Cir. 1980), vacated in part on other grounds, 455 U.S.
997 (1982). Because the documents were released to the CIA
by Congress without “some clear assertion of congressional
control. . . . either in the circumstances of the documents’
creation or in the conditions under which they were sent to the
CIA,” the court determined that they were agency records
under FOIA. Id. at 842. The court contrasted the treatment of
the requested records with the treatment of “three sealed
cartons of additional congressional documents” transferred to
the CIA at around the same time that were “accompanied by a
memorandum from the House Committee on International
Relations indicating that the Committee retained jurisdiction
over the documents, that the documents contained classified
information, and that access to the files was limited to those
with authorization from the Clerk of the House.” Id.
The decision in Paisley v. CIA is also illuminating. In that
case, a FOIA requester sought disclosure of letters transmitted
from the Senate Committee to the FBI and CIA relating to the
shooting death of a former CIA official. Paisley, 712 F.2d at
689-90, 694. In concluding that the letters were agency
records, the court noted that “[w]hen Congress created the
five documents in this case, it affixed no external indicia of
control or confidentiality on the faces of the documents.” Id.
at 694. We contrasted the letters with “at least seven other of
[the Senate Committee’s] documents . . . which were later
requested by appellant, but which were properly held by the
District Court to be exempt congressional documents in light
of their classification markings.” Id. The court stressed that
the disputed letters were subject to disclosure under FOIA
14
because they were not “sent to the FBI and the CIA in such a
way as to manifest any intent by Congress to retain control.”
Id. In other words, “nothing in either the circumstances of the
documents’ creation or the conditions attending their transfer
provide[d] the requisite express indication of a congressional
intent to maintain exclusive control over these particular
records.” Id. at 695.
It is important to note that the decisions in Goland, Holy
Spirit, and Paisley make it clear that Congress may manifest
an intent to retain control over documents either when the
documents are created or when the documents are transmitted
to an agency. Obviously, then, if Congress initiates the
creation of documents with a clear statement that the
“documents remain congressional records in their entirety
and disposition and control over these records, even after the
completion of the Committee’s review, lies exclusively with
the Committee,” June 2009 Letter, at ¶ 6, J.A. 93, and adds
that “these records are not CIA records under the Freedom of
Information Act or any other law,” id., then congressional
intent to maintain exclusive control of the documents is clear.
In this situation, congressional intent can only be overcome if
the record reveals that Congress subsequently acted to vitiate
the intent to maintain exclusive control over the documents
that was manifested at the time of the documents’ creation.
In sum, if “Congress has manifested its own intent to
retain control, then the agency—by definition—cannot
lawfully ‘control’ the documents.” Paisley, 712 F.2d at 693.
Conversely, if Congress intends to relinquish its control over
documents, then the agency may use them as the agency sees
fit. See id.; see also United We Stand, 359 F.3d at 600
(“Congress’s intent to control and the agency’s ability to
control ‘fit together in standing for the general proposition
that the agency to whom the FOIA request is directed must
15
have exclusive control of the disputed documents’ . . . .”
(quoting Paisley, 712 F.2d at 693)). In this case, we must
decide whether Congress somehow vitiated its clear intent to
control the Full Report when it transmitted the document to
Appellees.
Before turning to an application of the law to the facts of
this case, we must make it clear that we can give no weight to
the letter sent by now-Senate Committee Chairman Richard
Burr to the President in January 2015. The letter was sent
after Appellants had submitted their FOIA request and after
they had filed suit in the District Court. Therefore, the letter is
a “post-hoc objection[] to disclosure,” and, as such, it “cannot
manifest the clear assertion of congressional control that our
case law requires.” United We Stand, 359 F.3d at 602; see
also Holy Spirit, 636 F.2d at 842 (refusing to consider as
evidence of congressional intent a letter “written as a result of
[appellant’s] FOIA request and this litigation—long after the
actual transfer [of the documents] to the CIA”).
B. Application of the Law to the Facts of this Case
As we have made clear, the critical evidence in this case
is the June 2009 Letter from the Senate Committee Chairman
and Vice Chairman to the Director of the CIA. The Letter, in
straightforward terms, makes it plain that the Senate
Committee intended to control any and all of its work
product, including the Full Report, emanating from its
oversight investigation of the CIA. The Letter’s command is
unequivocal, and it contains no temporal limitations:
Any documents generated on the network drive
referenced in paragraph 5, as well as any other notes,
documents, draft and final recommendations, reports or
other materials generated by Committee staff or
16
Members, are the property of the Committee and will be
kept at the Reading Room solely for secure safekeeping
and ease of reference. These documents remain
congressional records in their entirety and disposition
and control over these records, even after the completion
of the Committee’s review, lies exclusively with the
Committee. As such, these records are not CIA records
under the Freedom of Information Act or any other
law. . . . If the CIA receives any request or demand for
access to these records from outside the CIA under the
Freedom of Information Act or any other authority, the
CIA will immediately notify the Committee and will
respond to the request or demand based upon the
understanding that these are congressional, not CIA,
records.
June 2009 Letter, at ¶ 6, J.A. 93-94 (emphases added).
Appellants maintain that the June 2009 Letter
demonstrates the Senate Committee’s intent to control only
those documents that were either (1) stored on the CIA’s
segregated network drive or (2) otherwise kept at the CIA’s
Reading Room. Br. for Appellants at 26. Therefore, according
to Appellants, the Full Report was not covered by the
Committee’s expressed intention to control its work product.
We reject this argument because it cannot be squared with the
plain language of the Letter.
The Letter, by its explicit terms, applies to all
“documents generated on the network drive” and to “any
other notes, documents, draft and final recommendations,
reports or other materials generated by Committee staff or
Members.” The Full Report is a “final . . . report.” Therefore,
the language of the Letter unambiguously includes the Full
Report. It does not matter that the Full Report was neither
17
stored on the CIA’s segregated network drive nor kept in the
CIA’s Reading Room. Indeed, it was understood by the
Committee and the CIA that much of the final drafting of the
reports would be completed at the United States Capitol in the
Senate Committee’s own workspace. The Full Report and the
other specified documents were to “remain congressional
records in their entirety . . . even after the completion of the
Committee’s review.” The Letter’s expansive language is
clear on this point.
At oral argument, counsel for Appellants cited United We
Stand for the proposition that “this court’s case law is
skeptical about pre-existing agreements” that foreclose
agencies from disclosing documents that are in their
possession. Oral Arg. Recording at 11:02-11:11. This
argument stretches the holding of United We Stand well
beyond what the court said in that case. We simply rejected
the agency’s effort to rely on its “consistent course of
dealing” with Congress to prove that future communications
were necessarily confidential. United We Stand, 359 F.3d at
602; see also Paisley, 712 F.2d at 695 (letters indicating
Senate Committee’s “desire to prevent release without its
approval of any documents generated by the Committee or an
intelligence agency in response to a Committee inquiry [were]
. . . . too general and sweeping to provide sufficient proof,
when standing alone . . . . [of] the requisite express indication
of a congressional intent to maintain exclusive control over
the[] particular records [at issue]”). In this case, however,
unlike in United We Stand, the June 2009 Letter did not relate
to the Senate Committee’s previous course of dealing with the
CIA. Rather, the Letter related specifically to the work
product emanating from the Senate Committee’s review of the
CIA’s former detention and interrogation program. The Full
Report was indisputably part of this work product. The June
2009 Letter is thus akin to the typewritten marking “Secret”
18
on the interior cover page of the document at issue in Goland.
The Committee effectively stamped its control over the Full
Report when it wrote the terms of the Letter.
The June 2009 Letter also stands in sharp contrast to the
evidence in Paisley. It surely cannot be said here that the June
2009 Letter was “too general and sweeping” to manifest the
Committee’s clear intent to control the work product
emanating from the Senate Committee inquiry. See also
Judicial Watch, 726 F.3d at 223 & n.20 (relying on a pre-
existing agreement, likewise concluding that such agreement
was not too “general”). The Senate Committee could hardly
have been more clear or precise in claiming control over all of
the work produced during its investigation of the CIA’s
former detention and interrogation program.
In an effort to avoid the clear terms of the June 2009
Letter, Appellants argue that the circumstances surrounding
the transmittal of the Full Report to Appellees demonstrate
that the Senate Committee intended to relinquish its control
over the Full Report. We disagree because the Committee’s
limited transmittal of the Full Report – especially in contrast
with its public release of the Executive Summary – in no way
vitiated its existing, clearly expressed intent to control the Full
Report.
Appellants’ argument seems to be premised on an
assumption that, when Congress transmits documents to an
agency, it must give contemporaneous instructions preserving
any previous expressions of intent to control the documents in
order to retain control over the documents. This is not the law.
Indeed, we rejected this proposition in Holy Spirit, even as we
held that the relevant documents constituted agency records.
See Holy Spirit, 636 F.2d at 842 (emphasizing that “we do not
adopt appellant’s position—that Congress must give
19
contemporaneous instructions when forwarding congressional
records to an agency. Nor do we direct Congress to act in a
particular way in order to preserve its FOIA exemption for
transferred documents”). And in Judicial Watch, the court
relied heavily on a Memorandum of Understanding executed
“well before the creation and transfer of the documents at
issue” in that case. See Judicial Watch, 726 F.3d at 223 n.20.
The court in Judicial Watch did not require the Office of the
President – the FOIA exempt governmental entity in that case
– to show contemporaneous evidence confirming its previous
expressions of intent to control the disputed documents.
Appellants acknowledge that when the Senate Committee
approved an initial version of the Full Report in December
2012 and sent the draft to the Executive Branch, the Senate
Committee did so with specific limitations on its use. The
Committee’s transmission made it clear that the draft of the
Full Report was being sent to specific individuals in the
Executive Branch for comments and possible edits, and that
the Senate Committee retained the discretion to accept or
reject any proposed changes offered by the Executive Branch.
The Senate Committee’s transmission also emphasized that
the Committee alone would “consider how to handle any
public release of the report, in full or otherwise.” Letter from
Dianne Feinstein, Chairman, Senate Select Comm. on
Intelligence, to President Barack Obama (Dec. 14, 2012), J.A.
127. These actions undeniably reinforced what had already
been made clear in the June 2009 Letter, i.e., that the
Committee intended to retain control over the Full Report.
Appellants contend, however, that when the Senate
Committee transmitted the final version of the Full Report to
the Executive Branch in December 2014, the Committee did
so without any similar limitations attached. This, according to
Appellants, gives proof of Congress’ intent to abdicate control
20
over the Full Report. In further support of this position,
Appellants seize on the following language of the December
2014 Letter, which accompanied the Senate Committee’s
transmission of the final version of the Full Report to the
President:
“[T]he full report should be made available within the
CIA and other components of the Executive Branch for
use as broadly as appropriate to help make sure that this
experience is never repeated. To help achieve that result,
I hope you will encourage use of the full report in the
future development of CIA training programs, as well as
future guidelines and procedures for all Executive Branch
employees, as you see fit.”
December 2014 Letter, J.A. 133.
Focusing on the letter’s use of the terms “broadly” and
“as you see fit,” Appellants claim that the Senate Committee
relinquished any control it may have had over the Full Report.
Br. for Appellants at 28-29. When the December 2014 Letter
is read in context, however – particularly against the backdrop
of the June 2009 Letter – it does not vitiate Congress’
existing, clearly expressed intent to maintain control of the
Full Report. The December 2014 Letter undoubtedly gives the
Executive Branch some discretion to use the Full Report for
internal purposes, much like the transcript at issue in Goland.
See Goland, 607 F.2d at 347 (transcript was a congressional
document even though “[t]he CIA retain[ed] a copy . . . for
internal reference purposes”). However, the December 2014
Letter does not override the Senate Committee’s clear intent
to maintain control of the Full Report expressed in the June
2009 Letter.
21
When Senator Feinstein transmitted the draft of the Full
Report to the Executive Branch on December 14, 2012, her
transmittal letter made it clear that the Committee would
determine if and when to publicly disseminate the Full
Report. Nothing changed as the final edits and corrections
were made to the Full Report. The limited transmittal of the
Full Report to Appellees in 2014 certainly did not vitiate the
command of the June 2009 Letter or otherwise authorize
public dissemination.
Finally, Appellants claim that the Chairman’s Foreword
to the Executive Summary, which encouraged “[t]his and
future Administrations [to] use this Study to guide future
programs, correct past mistakes, [and] increase oversight of
CIA representations to policymakers,” is evidence of the
Committee’s intent to relinquish control of the Full Report.
Br. for Appellants at 29. This argument, which relies on a
glaring non sequitur, obviously cannot carry the day.
On the record before us, the Senate Committee’s intent to
retain control of the Full Report is clear. The Full Report
therefore remains a congressional document that is not subject
to disclosure under FOIA.
III. CONCLUSION
For the foregoing reasons, the judgment of the District
Court is affirmed.
So ordered.