THIS CASEBOOK contains a selection of 159 U. S. Court of Appeals decisions that discuss, analyze and interpret provisions of the Freedom of Information Act. The selection of decisions spans from 2004 to the date of publication.
The Second Circuit was required to decide whether the National Security Council ("NSC") is an "agency" subject to the retention and disclosure requirements of the Freedom of Information Act in Main Street Legal Services, Inc. v. National Security Council, (2nd Cir. 2016).
[T]he FOIA applies only to federal agencies. Prior to 1974, the FOIA did not itself define "agency" but, rather, relied on the Administrative Procedure Act, which defines agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," subject to certain exceptions not applicable here. 5 U.S.C. § 551(1). In 1974, Congress amended the FOIA to clarify that the § 551(1) definition of agency, as applied to the FOIA, "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." FOIA Amendments of 1974, Pub. L. No. 93-502, sec. 3, § 552(e), 88 Stat. 1561, 1564 (codified as amended at 5 U.S.C. § 552(f)(1)) (emphasis added). Main Street argues that the highlighted FOIA language is unambiguous and, therefore, dispositive of the single issue on this appeal: the NSC is an "establishment in the executive branch of the Government" within "the Executive Office of the President" and, therefore, an "agency" subject to the FOIA. Main Street Legal Services, Inc. v. National Security Council, ibid.
Generally, "if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis." Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007); see United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir. 2012). The Supreme Court, however, has not strictly applied this rule in construing the above-highlighted language of the FOIA. Rather, in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 155-57 (1980), the Court looked to the FOIA's legislative history in concluding that notes made by the President's National Security Advisor were not agency records subject to the FOIA. The history referenced in Kissinger indicates that Congress did not intend for "'the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President'" to be "included within the term 'agency' under the FOIA." Id. at 156 (quoting H.R. Rep. No. 93-1380 (1974) (Conf. Rep.), reprinted in Subcomm. on Gov't Info & Indiv. Rights of the H. Comm. on Gov't Operations, 94th Cong., Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts, and Other Documents ("FOIA Source Book") 219, 232 (Joint Comm. Print 1975), available at http://1.usa.gov/1FMmbfm). Thus, [ ] we must look beyond the text of § 552(f)(1) and consider whether the NSC is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive. [Footnote omitted.] Main Street Legal Services, Inc. v. National Security Council, ibid.
The Second Circuit was required to decide whether the National Security Council ("NSC") is an "agency" subject to the retention and disclosure requirements of the Freedom of Information Act in Main Street Legal Services, Inc. v. National Security Council, (2nd Cir. 2016).
[T]he FOIA applies only to federal agencies. Prior to 1974, the FOIA did not itself define "agency" but, rather, relied on the Administrative Procedure Act, which defines agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," subject to certain exceptions not applicable here. 5 U.S.C. § 551(1). In 1974, Congress amended the FOIA to clarify that the § 551(1) definition of agency, as applied to the FOIA, "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." FOIA Amendments of 1974, Pub. L. No. 93-502, sec. 3, § 552(e), 88 Stat. 1561, 1564 (codified as amended at 5 U.S.C. § 552(f)(1)) (emphasis added). Main Street argues that the highlighted FOIA language is unambiguous and, therefore, dispositive of the single issue on this appeal: the NSC is an "establishment in the executive branch of the Government" within "the Executive Office of the President" and, therefore, an "agency" subject to the FOIA. Main Street Legal Services, Inc. v. National Security Council, ibid.
Generally, "if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis." Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007); see United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir. 2012). The Supreme Court, however, has not strictly applied this rule in construing the above-highlighted language of the FOIA. Rather, in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 155-57 (1980), the Court looked to the FOIA's legislative history in concluding that notes made by the President's National Security Advisor were not agency records subject to the FOIA. The history referenced in Kissinger indicates that Congress did not intend for "'the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President'" to be "included within the term 'agency' under the FOIA." Id. at 156 (quoting H.R. Rep. No. 93-1380 (1974) (Conf. Rep.), reprinted in Subcomm. on Gov't Info & Indiv. Rights of the H. Comm. on Gov't Operations, 94th Cong., Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts, and Other Documents ("FOIA Source Book") 219, 232 (Joint Comm. Print 1975), available at http://1.usa.gov/1FMmbfm). Thus, [ ] we must look beyond the text of § 552(f)(1) and consider whether the NSC is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive. [Footnote omitted.] Main Street Legal Services, Inc. v. National Security Council, ibid.
