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ILLINOIS INST., ETC. v. U.S. DEPT. OF LABOR

August 27, 1982

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION, AN ILLINOIS NONPROFIT CORPORATION, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF LABOR, AN AGENCY OF THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT, RAYMOND DONOVAN, SECRETARY OF LABOR, THORNE AUCHTER, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, ALFRED ZUCK, ASSISTANT SECRETARY OF LABOR FOR ADMINISTRATION AND MANAGEMENT, OFFICE OF MANAGEMENT AND BUDGET, AN AGENCY OF THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT, AND DAVID STOCKMAN, DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET, DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

This case requires us to construe the term "agency records" under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), in a somewhat unusual context. Plaintiff Illinois Institute for Continuing Legal Education seeks disclosure of a two volume "briefing book" on the United States Department of Labor (DOL) prepared by then President-elect Reagan's transition staff in December of 1980. Named as defendants are Secretary of Labor Raymond Donovan and the DOL.*fn1 Defendants have accorded plaintiff access to some of the material they seek, but have refused to make complete disclosure because (1) the second volume of the briefing book is not an "agency record" subject to the FOIA's commands, and (2) some of the material is exempted from disclosure under § 552(b) of the FOIA. Cross-motions for summary judgment are pending before the court.

I

We turn first to defendants' claim that volume two of the briefing book does not qualify as an "agency record" subject to the FOIA. The FOIA provides that,

  On complaint, the district court . . . has
  jurisdiction to enjoin the agency from withholding
  agency records and to order the production of any
  agency records improperly withheld from the
  complainant.

5 U.S.C. § 552(a)(4)(B) (1976). "Under 5 U.S.C. § 552(a)(4)(b) federal jurisdiction is dependent upon a showing that an agency has (1) `improperly' (2) `withheld' (3) `agency records.'" Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). The presence of "agency records" is therefore essential to a FOIA claim. Plaintiff claims the volume qualifies as an "agency record" under two separate theories.

First, plaintiff argues that the President-elect's transition team is an "agency" within the meaning of the FOIA, and that the volume qualifies as a "record" of the transition team.*fn2 Defendants do not dispute that the volume is a "record," but do argue that the transition team is not an "agency."

The FOIA states,

  For purposes of this section, the term "agency" as
  defined in section 551(1) of this title includes any
  executive department, military department, Government
  corporation, government-controlled corporation, or
  other establishment in the executive branch of the
  Government.

5 U.S.C. § 552(e) (1976). Section 551(1) in turn provides that "`agency' means each authority of the Government of the United States whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1) (1976). The legislative history of the FOIA indicates that Congress intended the term "agency" to reach entities "which perform governmental functions and control information of interest to the public." House Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6274, reprinted in Subcommittee on Government Information and Individual Rights of the House Committee on Government Operations & Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) — Source Book: Legislative History, Texts, and Other Documents 128 (Jt. Comm. Print 1975) [hereinafter cited as Source Book]. Thus, an entity qualifies as an "agency" under the FOIA only if it has authority to perform specific governmental functions. See Niemeir v. Watergate Special Prosecution Force, 565 F.2d 967, 969 n. 2 (7th Cir. 1977); Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C.Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975); Soucie v. David, 448 F.2d 1067, 1073 (D.C.Cir. 1971);*fn3 Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523, 527-28 (S.D.N.Y. 1977); Wolfe v. Weinberger, 403 F. Supp. 238, 240-41 (D.D.C. 1975); Gates v. Schlesinger, 366 F. Supp. 797, 798-99 (D.D.C. 1973). An entity which is autonomous of the government is not an "agency" under the Act. See Public Citizen Health Research Group v. HEW, 668 F.2d 537 (D.C.Cir. 1981); Irwin Memorial Blood Bank v. American National Red Cross, 640 F.2d 1051 (9th Cir. 1981); Forsham v. Califano, 587 F.2d 1128, 1138-39 (D.C.Cir. 1978), aff'd sub nom. Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir. 1976); Lombardo v. Handler, 397 F. Supp. 792, 795-96 (D.D.C. 1975), aff'd mem., 546 F.2d 1043 (D.C.Cir. 1976), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977). The principle that autonomy from the government precludes a finding that an entity is an "agency" under the Act was endorsed by the Supreme Court in Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980), where the Court held that private entities receiving grants of federal funds and subject to federal supervision are not "agencies" within the meaning of the FOIA, since they retain substantial autonomy from the Government, noting that Congress has always attempted to "preserv[e] grantee autonomy," id. at 179, 100 S.Ct. at 983. It concluded "that Congress did not intend that grant supervision short of Government control serve as a sufficient basis to make the private records `agency records' under the Act. . . ." Id. at 182, 100 S.Ct. at 985.

We now must examine the President-elect's transition team to determine whether it has the characteristics of an "agency" under the FOIA. There appears to be no reported case which has reached this question.*fn4

Provision for the President-elect's transition team is made in the Transition Act of 1963, which provides in pertinent part,

    The Administrator of General Services, referred to
  hereafter in this Act as "the Administrator," is
  authorized to provide, upon request, to each
  President-elect and each Vice-President-elect, for
  use in connection with his preparations for the
  assumption of official duties as President or Vice
  President necessary facilities, including —
    (2) Payment of the compensation of members of
  office staffs designated by the President-elect or
  Vice-President-elect at rates determined by them not
  to exceed the rate provided by the classification Act
  of 1949, as amended, for grade GS-18: Provided, That
  any employee of any agency of any branch of the
  Government may be detailed to such staffs on a
  reimbursable or nonreimbursable basis with the
  consent of the head of the agency; and while so
  detailed such employee shall be responsible only to
  the President-elect or Vice-President-elect for the
  performance of his duties; Provided further, That any
  employee so detailed shall continue to receive the
  compensation provided pursuant to law for his regular
  employment, and shall retain the rights and
  privileges of such employment without interruption.
  Notwithstanding any other law, persons receiving
  compensation as members of office staffs under this
  subsection, other than those detailed from agencies,
  shall not be held or considered to ...

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