All Party Parliamentary Group on Extraordinary Rendition v. United States Department of Defense

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2014 Decided June 17, 2014
No. 13-5176
ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY
RENDITION, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02375)
Dominic F. Perella argued the cause for appellants. With
him on the briefs were Audrey E. Moog, Jonathan L. Abram,
and Mary H. Wimberly.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Stuart F. Delery, Assistant Attorney General, Ronald
Machen, U.S. Attorney, and Matthew Collette, Attorney.
Before: TATEL, GRIFFITH, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Under the Freedom of Information
Act, although generally any legal entity may request records
from federal agencies, U.S. intelligence agencies are prohibited
from releasing records to foreign government entities or to their
“representatives.” In this case, a member of the British House of
Commons, an informal British parliamentary caucus, and an
American lawyer representing both all filed FOIA requests
seeking various records from the CIA and other intelligence
agencies. The agencies denied these requests, claiming that the
requesters all qualified as “representatives” of the British
government. The district court agreed and dismissed their suit to
compel disclosure. For the reasons stated in this opinion, we
reverse.
I.
Appellant Andrew Tyrie is a member of the British
Parliament and co-chair of Appellant the All Party Parliamentary
Group on Extraordinary Rendition (“APPG”), an informal
parliamentary caucus. Seeking to expose the United Kingdom’s
alleged involvement in extraordinary rendition, Tyrie and the
APPG, along with their American lawyer, Appellant Joe Cyr,
filed FOIA requests with various federal agencies, including
some—the CIA and components of the Departments of Defense,
Justice, State, and Homeland Security—that are part of the
“intelligence community.” See 50 U.S.C. § 3003(4) (listing
agencies that comprise the “intelligence community”). Declining
to release relevant records, these agencies invoked FOIA’s so-
called Foreign Government Entity Exception. That exception—
unique among FOIA provisions in that it limits access based on
the identity of the requester rather than the content of the
requested records—precludes intelligence agencies from
“mak[ing] any record available . . . to—(i) any government
entity, other than a State, territory, commonwealth, or district of
3
the United States, or any subdivision thereof; or (ii) a
representative of a government entity described in clause (i).”
5 U.S.C. § 552(a)(3)(E). According to the intelligence agencies,
all three FOIA requesters qualify as “representatives” of the
British government.
The FOIA requesters sued to compel disclosure. They
argued that in order to qualify as a “representative” of a foreign
government entity, the FOIA requester must be an agent of that
entity, and because they had no authority to file these requests on
behalf of the British government, the intelligence agencies could
not invoke the Foreign Government Entity Exception.
The district court dismissed the complaint, reasoning that
“the term ‘representative’ is not synonymous with ‘agent’ for the
purposes of [FOIA] . . . , and when Congress uses different
words a court must assume that the difference was intentional.”
All Party Parliamentary Group on Extraordinary Rendition v.
U.S. Department of Defense, 851 F. Supp. 2d 169, 175 (D.D.C.
2012). Finding that Tyrie “wields the power to act with the
government’s imprimatur,” the district court concluded that he
qualifies as a “representative” of the British Parliament, a
foreign government entity. Id. at 175. “Because Joe Cyr is
Andrew Tyrie’s legal representative,” the district court
continued, “Cyr’s request is similarly barred.” Id. at 177. And as
to the APPG, an organization composed “exclusively of public
officials,” the district court concluded that it is itself a
“‘subdivision’ of a foreign ‘government entity’ within the
language of the [Foreign Government Entity Exception].” Id. at
175–76.
The three FOIA requesters now appeal, reiterating
arguments they made in the district court. For their part, the
intelligence agencies do not defend the district court’s
conclusion that the APPG constitutes a subdivision of a foreign
4
government entity. Instead, they argue that all three FOIA
requesters qualify as “representatives” of the British
government: Tyrie as a member of Parliament, the APPG as an
organization made up entirely of members of Parliament, and
Cyr as their legal representative. “We review de novo the district
court’s grant of a motion to dismiss, as well as its resolution of
this pure question of statutory interpretation,” Gonzalez-Vera v.
Townley, 595 F.3d 379, 381–82 (D.C. Cir. 2010) (internal
quotation marks and citation omitted), and give the intelligence
agencies’ interpretation of FOIA no deference, see Al-Fayed v.
C.I.A., 254 F.3d 300, 307 (D.C. Cir. 2001) (“[I]t is precisely
because FOIA’s terms apply government-wide that we generally
decline to accord deference to agency interpretations of the
statute, as we would otherwise do under Chevron . . . .”).
II.
At the outset, we think it important to place this case in its
proper context. For one thing, contrary to the intelligence
agencies’ suggestion that interpreting “representative” to mean
“agent” would expose government secrets to terrorists, national
security is not at issue here. Because one of FOIA’s traditional
exemptions prevents disclosure of classified records, no
classified information will see the light of day regardless of how
we decide this case. See 5 U.S.C. § 552(b)(1) (precluding
disclosure of records “specifically authorized under criteria
established by an Executive order to be kept secret in the interest
of national defense or foreign policy”). Moreover, whatever the
Foreign Government Entity Exception’s “representative”
provision means, it is unlikely to pose a serious barrier to the
release of unclassified records. Since the exception does not
apply to FOIA requests filed by any person, foreign or domestic,
other than foreign government entities and their representatives,
a requester concerned about the exception can steer clear of it
simply by waiting for a likeminded requester to seek the same
5
information. Cf. Oral Arg. Rec. 21:10–:40 (noting that several
FOIA requesters who fall well outside the Foreign Government
Entity Exception have recently filed requests identical to those at
issue here). But because Tyrie, the APPG, and Cyr filed these
requests themselves, prompting the intelligence agencies to
invoke the Foreign Government Entity Exception, we must
determine the scope of the exception’s “representative”
provision—a question of first impression in this or any circuit.
Although the intelligence agencies insist that these FOIA
requesters are “representatives” of a foreign government entity,
they never clearly explain how they would have us define
“representative.” In their brief, they urge us to hold that the
Foreign Government Entity Exception applies, “at a minimum,
to FOIA requests filed by members of the legislative bodies of
foreign governments, groups comprised solely of such
individuals, and their legal representatives.” Appellees’ Br. 10.
When pressed at oral argument to provide a definition of the
term that would apply more broadly, counsel suggested that
“representatives” of foreign government entities include all
those who have the capacity to act on behalf of such entities.
Oral Arg. Rec. 17:00–18:20, 22:25–23:00. But counsel seemed
less willing to defend this interpretation once he realized that it
might capture personal secretaries, cafeteria employees, and
janitors. Id. at 25:15–28:50.
By contrast, the FOIA requesters have consistently posited a
clear interpretation of the term “representative.” As they see it,
“representative” means “agent.” Thus, “representatives” of
foreign government entities include only those who have been
empowered to file certain types of FOIA requests on behalf of
such entities and only when they file those types of requests.
Authority to act as an agent of a foreign government entity for
purposes of FOIA is likely inherent in certain positions, such as
6
head of state and ambassador, obviating any need to inquire into
whether officials holding such positions have specific authority
to file particular sorts of FOIA requests. Other officials, such as
cabinet ministers, likely also have inherent authority to submit
FOIA requests so long as the requests relate to matters within
the jurisdiction of their offices. The intelligence agencies
concede that under the FOIA requesters’ theory, Tyrie, the
APPG, and Cyr fall outside the Foreign Government Entity
Exception.
The FOIA requesters have the better of this argument. To
begin with, consider the meaning of the word “representative.”
The Oxford English Dictionary defines “representative,” in part,
as “[o]ne who represents another, as agent, delegate, substitute,
successor, or heir.” XIII OXFORD ENGLISH DICTIONARY 660 (J.A.
Simpson & E.S.C. Weiner eds., 2d ed. 1989); see also
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1926
(Philip Babcock Gove ed., 3d. ed. 1993) (defining
“representative,” in part, as “constituting the agent for another
esp. through delegated authority”). Indeed, this Court recently
observed as much with respect to the same word in a different
statute: “‘representative’ is traditionally and commonly defined
as an agent with authority to bind others.” Loving v. I.R.S., 742
F.3d 1013, 1016 (D.C. Cir. 2014) (citing various dictionaries,
including specialized legal dictionaries, and various statutory
definitional provisions). Given that “agent” is a traditional and
common definition of “representative,” and given that reading
“representative” of a foreign government entity to mean “agent”
of a foreign government entity makes perfect sense, we suspect
that Congress would have used a different word—perhaps
“official,” “employee,” or “affiliate”—had it wanted to avoid
incorporating agency principles into the Foreign Government
Entity Exception.
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The structure of the Foreign Government Entity Exception
reinforces this conclusion. Recall that the exception first
precludes intelligence agencies from considering FOIA requests
filed by foreign government entities and immediately thereafter
precludes such agencies from considering requests filed by
“representatives” of such entities. The U.S. Code is chock-full of
provisions that first mention some entity and then refer to that
entity’s “representatives” in order to ensure that the provision
applies not only to the entity itself but also to that entity acting
through others. See, e.g., 7 U.S.C. § 7464(a) (establishing a
National Kiwifruit Board consisting in part of “10 members who
are producers, exporters, or importers (or their
representatives)”); 30 U.S.C. § 1271(a)(2) (authorizing “the
Secretary [of the Interior] or his authorized representative” to
“order a cessation of surface coal mining and reclamation
operations” upon finding certain environmental violations).
Granted, many of these provisions refer to an entity and its
representatives in a single phrase whereas FOIA section
552(a)(3)(E) splits entities and their representatives into separate
subsections, but the lengthy definition of foreign government
entity in subsection 552(a)(3)(E)(i) likely required Congress to
employ separate subsections here. See 5 U.S.C. § 552(a)(3)(E)(i)
(referring to “any government entity, other than a State, territory,
commonwealth, or district of the United States, or any
subdivision thereof”). We therefore think it reasonable to infer
that Congress included the “representative” provision in order to
prevent foreign government entities from evading the Foreign
Government Entity Exception by filing FOIA requests through
agents, not to create a separate and independent class of
disfavored FOIA requesters.
The intelligence agencies argue that “representative” means
something other than “agent.” They emphasize two points.
8
First, while acknowledging that “agent” is one possible
definition of “representative,” they suggest that Congress drafted
this statute in a way that requires us to adopt a different
definition. Echoing the district court, they primarily argue that
had Congress wanted to establish an agency requirement, it
would have used the more precise word “agent” instead of
“representative.” But as the intelligence agencies’ counsel
conceded at oral argument, the words “representative” and
“agent” are synonyms. Oral Arg. Rec. 15:40–16:00. To take just
one example, The Random House Thesaurus lists
“representative” as the first synonym for “agent,” and vice versa.
THE RANDOM HOUSE THESAURUS COLLEGE EDITION 30, 599
(Jess Stein & Stuart Berg Flexner eds., 1984); see also ROGET’S
INTERNATIONAL THESAURUS 412 (Robert L. Chapman ed., 5th
ed. 1992) (listing “representative” as the third synonym for
“agent”); F. STURGES ALLEN, ALLEN’S SYNONYMS AND
ANTONYMS 323 (T.H. Vail Motter ed., 1938) (listing “agent” as
the first synonym for “representative”). Where, as here, two
words share at least one common meaning, we read nothing into
Congress’s use of one rather than the other. See Tyler v. Cain,
533 U.S. 656, 664 (2001) (“Congress, needless to say, is
permitted to use synonyms in a statute.”).
In further support of their argument that Congress drafted
this statute in a way that precludes interpreting “representative”
to mean “agent,” the intelligence agencies argue that since
“representative” can also be defined as “member of a legislative
body,” we should interpret “representative” to include, at least,
all members of foreign legislative bodies. We disagree. Even
though some dictionaries list “member of a legislative body” as
one definition of “representative,” and even though members of
Congress are known as “representatives,” members of legislative
bodies are “representatives” because they act on behalf of their
constituents, not because they are representatives of foreign
9
government entities. See, e.g., XIII OXFORD ENGLISH
DICTIONARY at 660 (defining “representative,” in part, as “one
who . . . represents a number of persons in some special
capacity; spec. one who represents a section of the community as
member of a legislative body”).
Second, the intelligence agencies point to the purpose of the
Foreign Government Entity Exception. According to the House
Report, the only relevant legislative history, Congress added the
Foreign Government Entity Exception to FOIA in order to
lessen compliance burdens:
[F]oreign persons and governments (including those
that may support or participate in terrorist activities)
have generated requests that require a significant
commitment of Intelligence Community resources to
process. . . . Because elements of the Intelligence
Community routinely handle classified national
security information, the resources required to perform
the painstaking, line-by-line reviews necessary to
ensure the proper protection of such classified
information are substantial. This section will prevent
the diversion of the Intelligence Community’s limited
declassification resources for this purpose.
H.R. REP. No. 107-592, at 27 (2002). The intelligence agencies
argue that interpreting “representative” to mean “agent” would,
instead of decreasing compliance burdens, actually impose new
burdens on intelligence agencies because they would have to
engage in a time-intensive inquiry into whether each individual
FOIA requester qualifies as an agent of a foreign government
entity.
We hesitate to put much stock in the House Report. For one
thing, it refers to “foreign persons” even though the statute
applies only to certain foreign persons, i.e., foreign government
10
entities and their representatives. Moreover, even if the report
accurately documents what the House committee—a subset of
one house of Congress—thought about the Foreign Government
Entity Exception, we have explained that our interpretation finds
support in the text and structure of the statute. See, e.g., Citizens
Coal Council v. Norton, 330 F.3d 478, 481 (D.C. Cir. 2003)
(noting that “text [and] structure” are “traditional tools of
statutory interpretation” that must be considered alongside
“legislative history” and “purpose” (internal quotation marks
omitted)).
In any event, we have no reason to believe that the
intelligence agencies’ preferred approach would prove any less
burdensome than ours. Reading the term “representative” to
mean something along the lines of “official,” “employee,” or
“affiliate,” as the intelligence agencies seem to suggest, would
leave the precise contours of the “representative” class quite
vague. Is a parliamentary janitor or cafeteria worker a
“representative” of a foreign government entity? What about a
low-level civil service staffer at the U.K. Home Office? Or what
about Tyrie’s personal secretary? The intelligence agencies
never explain why resolving these uncertainties would prove any
easier than identifying whether FOIA requesters are agents of
foreign government entities. Indeed, determining whether a
FOIA requester is a representative of a foreign government
entity is not unlike other inquiries agencies already engage in.
For instance, this Court has interpreted FOIA section 552(d),
which provides that FOIA exemptions do not apply to requests
from Congress, as requiring agencies to distinguish between
requests made by members of Congress in their official
capacities and those made in their individual capacities. See
Murphy v. Department of the Army, 613 F.2d 1151, 1157 (D.C.
Cir. 1979); see also Office of Information Policy, U.S.
Department of Justice, Congressional Access Under FOIA, 5
11
FOIA UPDATE 1 (1984), available at
http://www.justice.gov/oip/foia_updates/Vol_V_1/page3.htm
(rejecting Murphy and recommending adoption of an agency
approach under which “[e]ven where a FOIA request is made by
a Member clearly acting in a completely official capacity, such a
request does not properly trigger the special access rule . . .
unless it is made by a committee or subcommittee chairman, or
otherwise under the authority of a committee or subcommittee”).
We thus conclude that FOIA requesters who have authority
to file requests on behalf of foreign government entities are
“representatives” of such entities when they file requests of the
sort they have authority to file. Since the intelligence agencies
concede that under this theory these three FOIA requesters fall
outside the Foreign Government Entity Exception, the exception
poses no barrier to the FOIA requests at issue.
III.
For the foregoing reasons, we reverse and remand.
So ordered.