Cause of Action v. National Archives & Records Administration
42 Media L. Rep. (BNA) 2032, 753 F.3d 210, 410 U.S. App. D.C. 97 (2014)
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Rule of Law:
Records created by a legislative branch entity not subject to the Freedom of Information Act (FOIA) do not become 'agency records' subject to FOIA disclosure simply by virtue of being transferred to the National Archives and Records Administration (NARA) for preservation.
Facts:
- In 2009, the Financial Crisis Inquiry Commission (FCIC) was established as a temporary legislative branch agency to investigate the 2008 financial crisis.
- As a legislative branch entity, the FCIC and its records were not subject to the Freedom of Information Act (FOIA).
- The FCIC was scheduled to terminate in early 2011 after completing its work.
- Shortly before its termination, the FCIC's Chairman wrote to the Archivist of the United States, stating that FOIA would not apply to the Commission's records even after their transfer to the National Archives.
- The Chairman requested that access to non-public records be restricted for five years.
- The FCIC then transferred its records to the National Archives and Records Administration (NARA) for preservation and storage.
- In October 2011, a group named Cause of Action submitted a FOIA request to NARA seeking certain records created by the FCIC.
Procedural Posture:
- Cause of Action submitted a Freedom of Information Act (FOIA) request to the National Archives and Records Administration (NARA) for records of the Financial Crisis Inquiry Commission.
- NARA denied the request and the subsequent administrative appeal.
- Cause of Action filed suit against NARA in the United States District Court for the District of Columbia.
- The district court granted NARA's motion to dismiss, holding that the records were not 'agency records' subject to FOIA.
- Cause of Action, as appellant, appealed the dismissal to the United States Court of Appeals for the District of Columbia Circuit, with NARA as the appellee.
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Issue:
Do records created by a legislative branch commission, which is exempt from the Freedom of Information Act (FOIA), become 'agency records' subject to FOIA when they are transferred to the National Archives and Records Administration, an agency that is subject to FOIA?
Opinions:
Majority - Senior Circuit Judge Randolph
No. Records from a FOIA-exempt legislative branch entity do not become 'agency records' subject to FOIA disclosure upon their transfer to the National Archives. The court reasoned that the FOIA status of a document is determined by its originating entity, not its subsequent custodian. The court explicitly rejected the application of the standard four-factor 'control' test (the Burka test) in this context, finding it ill-suited for an agency like NARA, whose primary function is to preserve records, not to use them in its own decision-making. NARA acts as a repository or 'warehouse' for documents from all three branches of government, and its archival functions of cataloging and storing do not convert FOIA-exempt legislative records into executive branch 'agency records.' The court concluded that Congress did not intend to expose legislative branch materials to FOIA simply because they are deposited with the Archives for preservation, as doing so would not serve FOIA's purpose of shedding light on the operations of the agency holding the records.
Analysis:
This decision clarifies that the FOIA status of government records is determined by their origin, not their physical location or custodial agency. By carving out an exception for records held by NARA, the court prevents the use of FOIA as a 'backdoor' to access materials from FOIA-exempt entities like Congress, the judiciary, and temporary legislative commissions. This ruling reinforces the separation of powers by protecting the confidentiality of legislative and judicial records, ensuring their FOIA-exempt status is not inadvertently lost through the routine process of archival preservation.
