Cause of Action v. National Archives and Records Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2014 Decided May 23, 2014
No. 13-5127
CAUSE OF ACTION ,
APPELLANT
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01342)
Daniel Epstein and Marie A. Connelly argued the cause for
appellant. On the brief were Patrick J. Massari and Reed D.
Rubinstein.
Christine N. Kohl, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were Stuart
F. Delery, Assistant Attorney General, Ronald C. Machen Jr.,
U.S. Attorney, and Leonard Schaitman, Attorney. Edward
Himmelfarb, Attorney, entered an appearance.
Kerry W. Kircher, General Counsel, William Pittard,
Deputy General Counsel, Christine M. Davenport, Senior
Assistant Counsel, and Todd B. Tatelman, Mary Beth Walker,
and Eleni M. Roumel, Assistant Counsel, were on the brief for

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amicus curiae Bipartisan Legal Advisory Group of the United
States House of Representatives.
Before: HENDERSON and KAVANAUGH , Circuit Judges, and
RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH .
R ANDOLPH , Senior Circuit Judge: This is an appeal from
the judgment of the district court dismissing a complaint brought
under the Freedom of Information Act, 5 U.S.C. § 552. The
complaint sought, from the National Archives, records of the
Financial Crisis Inquiry Commission, a legislative branch
agency charged with investigating “the causes, domestic and
global, of the current financial and economic crisis in the United
States.” Fraud Enforcement and Recovery Act of 2009, Pub. L.
No. 111-21, § 5(a), 123 Stat. 1617, 1625.
The Commission, established in 2009, was to report its
findings and conclusions to Congress and the President on
December 15, 2010, and then terminate 60 days later. Id.
§ 5(h)–(i). 1 Shortly before it disbanded, the Commission
transferred its records to the National Archives and Records
Administration. The Archives accepted the records pursuant to
its statutory authority to “accept for deposit with the National
Archives of the United States the records of a Federal agency,
the Congress, the Architect of the Capitol, or the Supreme
Court” when the Archivist determines those records to have
1 The Commission’s Report was released to the public on January
27, 2011. See Press Release, Fin. Crisis Inquiry Comm’n, Financial
Crisis Inquiry Commission Releases Report on the Causes of the
Financial Crisis (Jan. 27, 2011), available at http://fcic-static.law.
stanford.edu/cdn_media/fcic-news/2011-0127-fcic-releases-report.pdf.

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“sufficient historical or other value to warrant their continued
preservation.” 44 U.S.C. § 2107(1). 2
FOIA requires most federal agencies to make their “agency
records,” 5 U.S.C. § 552(a)(4)(B), available to the public,
subject to several exceptions. See, e.g., Milner v. Dep’t of Navy,
131 S. Ct. 1259, 1261-62 (2011). “Agency,” in the FOIA
context, means “each authority of the Government of the United
States,” but the definition “does not include” Congress and
certain other governmental entities, such as the “courts of the
United States.” 5 U.S.C. § 551(1). As a result, FOIA “does not
cover congressional documents,” United We Stand Am., Inc. v.
IRS, 359 F.3d 595, 597 (D.C. Cir. 2004), or documents of
legislative branch agencies, see Wash. Legal Found. v. U.S.
Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994);
Ethnic Emps. of Library of Cong. v. Boorstin, 751 F.2d 1405,
1416 n.15 (D.C. Cir. 1985). The Financial Crisis Inquiry
Commission, established in the legislative branch, was therefore
not an “agency” subject to FOIA. Cause of Action v. Nat’l
Archives & Records Admin., 926 F. Supp. 2d 182, 185 (D.D.C.
2013). On the other hand, the National Archives and Records
Administration is an agency within the executive branch. 44
U.S.C. § 2102. As such, it is an “agency” subject to FOIA.
The issue in this case is whether the Commission’s records,
exempt from FOIA while the Commission produced, retained
2 Beyond its § 2107 authority to preserve records with historical
value, the Archives accepts and stores documents from other federal
entities, including lower federal courts and agencies in all three
branches, in its Federal Records Centers. See 44 U.S.C. § 3103; 36
C.F.R. § 1232.10; About the Federal Records Centers, F ED. RECORDS
CTR., http://www.archives.gov/frc/about.html (last visited May 2014).

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and relied upon those documents,3 became subject to FOIA
when the Commission turned its records over to the Archives.
I
In an early interpretation of the Freedom of Information
Act, the Supreme Court held that documents may be considered
“agency records”—a term not defined in the Act—if the
documents are created or obtained by an “agency” that receives
the FOIA request and are in that agency’s “control”—that is, in
“the agency’s possession in the legitimate conduct of its official
duties.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
144-45 (1989). Since Tax Analysts, some of our decisions have
considered “four factors to determine whether an agency
controls a document.” Judicial Watch, Inc. v. Fed. Hous. Fin.
Agency (Judicial Watch I), 646 F.3d 924, 926 (D.C. Cir. 2011).
The factors are
[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 records 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.
Id. at 926-27 (quoting Burka v. U.S. Dep’t of Health & Human
Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)).
But this test—sometimes called the Burka test, although
Burka was itself quoting a vacated opinion—is an uncertain
guide when “a governmental entity not covered by FOIA”
3 Despite its exemption from FOIA the Commission released
many documents during its existence.

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transfers records to a governmental entity that is covered.
Judicial Watch, Inc. v. U.S. Secret Serv. (Judicial Watch II), 726
F.3d 208, 221 (D.C. Cir. 2013). That is what occurred here.
Three days before the Commission terminated, its Chairman
wrote to the Archivist of the United States stating that because
FOIA exempted the Commission, “FOIA will not apply to the
Commission records even after they are transferred” to the
Archives. The Chairman requested that the Archivist restrict
access to any Commission records not already publicly
accessible on the internet until February 13, 20164—five years
from the date of the Commission’s shutdown. He also asked
that, during the five-year hold, the Archivist “conduct a
systematic review of the records that are not currently available
to the public with the goal of releasing as much information as
is allowable” in 2016. The next day, February 11, 2011, the
records were transferred.
In October 2011, Cause of Action (then the Freedom
Through Justice Foundation) submitted a FOIA request to the
Archives requesting certain Commission records. The request
asserted that the “records under [the Archives’] control are
subject to disclosure under FOIA.” The Archives denied the
request, first in December 2011, then again in February 2012 on
4 When the head of an agency deposits records in the Archives,
he may request in writing that access restrictions be placed on the
records. 44 U.S.C. § 2108(a). If the Archivist agrees that the
limitations are “necessary or desirable in the public interest,” he must
uphold them. Id. But the restrictions must be “consistent with FOIA.”
36 C.F.R. § 1235.30(a). So if the records are “agency records,”
FOIA’s access provisions prevail over any inconsistent restrictions
requested by the transferor. Id. If the agency that requested the
restrictions has ceased to exist, and there is “no successor in function,”
the Archivist is empowered to relax (or otherwise change) the
restrictions to serve “the public interest.” 44 U.S.C. § 2108; see 36
C.F.R. § 1235.32.

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Cause of Action’s administrative appeal. The Archives did not
dispute its own status as a FOIA-covered agency. But it
maintained that because the Commission was established in the
legislative branch, Commission records held by the Archives
were not agency records subject to FOIA. Transferring the
records to the Archives’ custody, the Archives concluded, was
not “dispositive of the FOIA access question.”
The district court applied the four-factor Burka control test.
Cause of Action, 926 F. Supp. 2d at 187-89. Finding that three
of the four factors weighed in favor of the Archives, the court
held that the Commission’s records were “not agency records
subject to FOIA” and granted the Archives’ motion to dismiss.
Id. at 184, 189.
II
The National Archives serves as a repository for the federal
government, including Congress5 and legislative branch
agencies. Some of those legislative agencies are permanent.
The Congressional Budget Office and the Government
Accountability Office are two of the most well known.
Temporary legislative commissions also deposit their records
5 At the close of each Congress, non-current records of the
Congress are transferred to the Archives “for preservation, subject to
the orders of the House of Representatives and the Senate,
respectively.” 44 U.S.C. § 2118. The records of Congress, including
committees and subcommittees of the House and Senate, “remain the
legal property” of those bodies. Congressional Records, NAT’ L
ARCHIVES, http://www.archives.gov/legislative/research (last visited
May 2014); see Rules of the House of Representatives, H.R. Doc. 111-
157, 111th Cong., R. VII § 2 (2011); see also S. Res. 474, 96th Cong.
(1980). Both the House and the Senate have detailed rules stating
when records so delivered may be made public.

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with the Archives before they go out of existence, as the
Financial Crisis Inquiry Commission did in this case.
The Archives, supported by amicus Bipartisan Legal
Advisory Group of the U.S. House of Representatives, which
represents the House’s institutional position in litigation, argues
that when a legislative commission transfers its records to the
National Archives, the FOIA status of those records is not
altered. In other words, a document subject to FOIA before the
Archives received it remains subject to FOIA after it arrives; a
document exempt from FOIA before the Archives received it
remains exempt after it arrives. The Commission’s records,
when created in the legislative branch, were not subject to
FOIA. According to this argument, they remained exempt after
the Commission deposited them with the Archives.
Although we have never explicitly held that transferring a
document to the Archives does not affect the document’s FOIA
status, we suggested as much in Katz v. National Archives &
Records Administration, 68 F.3d 1438 (D.C. Cir. 1995). There,
we considered whether autopsy photographs of President
Kennedy that had been transferred to the National Archives
were agency records subject to FOIA. Id. at 1440. We held
they were not, in part because they were “personal presidential
materials when they were first created, and therefore at no time
were they ever agency records.” Id. at 1441. In other words, the
depositing of these materials with the Archives did not convert
them into “agency records” subject to FOIA.
The regulations of the Archives reflect Katz’s reasoning.
One regulation is entitled, “Does FOIA cover all of the records
at [the Archives]?” 36 C.F.R. § 1250.6. “No,” it answers,
“FOIA applies only to the records of the executive branch . . ..”
Id. “If you want access to” records of Congress or the federal
courts, the regulation explains, “FOIA does not apply.” Id. The

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regulation then points the researcher to other regulations
governing access to the FOIA-exempt records. See, e.g., 36
C.F.R. pt. 1256 (Access to Records and Donated Historical
Materials); id. pt. 1270 (Presidential Records).
Cause of Action argues that rather than relying on Katz, we
should decide this case using the four-factor Burka test, a test
intended to determine whether the FOIA-covered agency had
control over the documents. “Control” became a consideration
in FOIA cases as a result of the need to distinguish agency
records from “personal materials in an employee’s possession,
even though the materials may be physically located at the
agency.” Tax Analysts, 492 U.S. at 145 (discussing Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155-
57 (1980)). If the agency did not control the material, the
Supreme Court held, the material was not an “agency record.”
We have questioned whether the Burka test is helpful in
delineating that distinction. “Our past application of the test
reveals its considerable indeterminacy.” Judicial Watch II, 726
F.3d at 220. In any event, applying the test in this case is
particularly problematic because documents deposited with the
National Archives do not present the sort of questions the Burka
test purports to answer.
As applied to the Archives, the four-factor test is divorced
from FOIA’s key objective—revealing to the public how federal
agencies operate. See Judicial Watch I, 646 F.3d at 927. Take
for example the third and fourth Burka factors. Factor (3) is “the
extent to which agency personnel have read or relied upon the
document.” Id. (internal quotation omitted). Factor (4) is “the
degree to which the document was integrated into the agency’s
record system or files.” Id. (internal quotation omitted). The
third and fourth Burka factors make these inquiries because
relied-upon and catalogued documents may be expected to
reveal something “about agency decisionmaking”—“agency”

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here referring to the Archives, not the Commission. Id. at 928.
But with respect to the Archives, these inquiries are entirely
otiose.
In order to catalog and file documents delivered from
Congress or, for example, the Supreme Court, archivists review
the documents and make preservation decisions. We may
assume that, once those decisions are made, the records are
“integrated” into the Archives’ “files.” But those typical
archival functions—common to every record in the Archives—
do not suddenly convert the records of a defunct legislative
commission into “agency records” able to expose the operations
of the Archives “to the light of public scrutiny.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 372 (1976).
Given the difficulties with the Burka test, we have
“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.” Judicial Watch II, 726 F.3d at 221. As
we said in Bureau of National Affairs v. U.S. Department of
Justice, when “documents originate within the Congress, the
judiciary, and FOIA-exempt executive agencies, sometimes
special policy considerations militate against a rule compelling
disclosure of such records merely because such documents
happen to come into the possession of [a FOIA-covered]
agency.” 742 F.2d 1484, 1491-92 (D.C. Cir. 1984) (alterations
and internal quotation marks omitted). In this line of cases, we
have analyzed only the transferring entity’s intent to control the
documents and their future use. “This focus renders the first two
factors of the [Burka] test effectively dispositive.” Judicial
Watch II, 726 F.3d at 221.
Although we, too, will not use the Burka test, we do not
think it makes sense to apply the analysis from Judicial Watch

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II and the cases discussed in that opinion to the National
Archives. Like 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.
In order for a document to be considered an “agency
record,” there must be some relationship between the record and
the FOIA-covered agency. This relationship has been described
as one of “possession” or “control.” E.g., Kissinger, 445 U.S. at
155. And we have looked to possession and control because,
often, these concepts capture the nature and use of a document
as it changes hands among federal agencies. See, e.g., Tax
Analysts, 492 U.S. at 146-47; Judicial Watch II, 726 F.3d at
221-23. Not so here.
The main function of the Archives is to preserve documents
of enduring value from all three branches of government.6 The
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.” See Ann H. Wion, The Definition of
“Agency Records” Under the Freedom of Information Act, 31
STAN . L. REV . 1093, 1111 (1979).7 Variances in this sort of
6 The documents may come from any of the three branches of
government or, as in Katz, from private parties as a donation. See 44
U.S.C. § 2111(2).
7 And if a particular document originated with a FOIA-covered
entity, the Archives’ responsibilities include disseminating the
document pursuant to a lawful FOIA request. Cf., e.g., Morley v. CIA,
508 F.3d 1108, 1113 (D.C. Cir. 2007). The Archives regularly grants
FOIA requests for FOIA-covered records. See NAT’ L ARCHIVES ,
F ISCAL YEAR 2012: ANNUAL FOIA REPORT, available at http://www.
archives.gov/foia/reports/2012.pdf.

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“control” are entirely unhelpful in determining a record’s value
to a FOIA requester, see Judicial Watch I, 646 F.3d at 928 (“[A]
document that could not reveal anything about agency
decisionmaking is not an ‘agency record.’”), and irrelevant to
any withholding prerogative that may remain with the transferor,
see Judicial Watch II, 726 F.3d at 221.
Ultimately we are dealing with a question of statutory
interpretation and congressional intent. See Kissinger, 445 U.S.
at 154; Judicial Watch II, 726 F.3d at 225. FOIA does not
define “agency records,” but we are confident that Congress did
not intend to expose legislative branch material to FOIA simply
because the material has been deposited with the Archives. Yet
that would be the consequence of what Cause of Action
proposes.
Affirmed.

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