On April 6, 1979, the plaintiffs moved to stay issuance of the court's mandate pending application to the U.S. Supreme Court for a writ of certiorari. The motion was granted, and on June 26, 1979, the plaintiffs' petition for writ of certiorari was filed.

On March 17, 1980, the petition for writ of certiorari was denied. [445 U.S. 927]

Status-The case is closed.

Ryan v. Department of Justice

No. 79-1777 (D.C. Cir.)

Halpern v. Department of Justice

No. 79-1778 (D.C. Cir.)

In November 1978, President Carter issued merit selection guidelines for new Federal district court judges in Executive Order 12097 (3 C.F.R. § 254). Subsequently, the Department of Justice prepared a questionnaire to be sent to all U.S. Senators which inquired about their efforts and/or those of their judicial nominating commissions to comply with the new guidelines. The questionnaire in general asked for a description of the attempts made to identify qualified candidates, including women and members of minority groups.

In December 1978, Tom Ryan, Director of the Missouri Public Interest Research Group, requested under the Freedom of Information Act ("FOIA") a copy of the response to the questionnaire provided by Missouri Senator Thomas Eagleton. In January and February 1979, Charles Halpern, Chairman of the Judicial Selection Project, and Dorothy Samuels, Executive Director of the Committee for Public Justice, made similar FOIA requests for access to all responses to the questionnaire received by the Department of Justice. The requests were made as part of the groups' efforts to monitor the composition of the Federal judiciary and to increase the number of women, minorities, and individuals responsive to public interest concerns appointed as Federal judges.

When the Department of Justice stated that it would not be able to comply with the statutory time requirements for processing the requests under the FOIA, the individuals and their groups filed separate suits on April 12, 1979 in the U.S. District Court for the District of Columbia to compel disclosure before the judicial selection process was completed. At the same time, the plaintiffs asked the court to order the Department to file a Vaughn index specifying the legal grounds on which it was relying to oppose disclosure. In an order filed April 30, 1979, District Court Judge Barrington Parker denied the motion for a Vaughn index, holding that it was premature.

On May 9, 1979, Associate U.S. Attorney General Michael Egan, in separate letters, denied the Ryan and Halpern requests in their entirety. He noted:

The records in question are not subject to access under the Freedom of Information Act. In my opinion, it is inconceivable that Congress ever intended communications from members of the Senate to the President, on matters involving their respective, related responsibilities under the Constitu

tion, to be subject to access under the statute. This is also true of the responses received directly from nominating commissions. If, however, any of these communications were to be deemed to fall under the Freedom of Information Act, I am satisfied that they would be exempt from mandatory release in their entireties pursuant to 5 U.S.C. 552(b) (5). [ed. note: Exemption (5) relates to "inter- or intra-agency" advisory documents.]

On May 18, 1979, the plaintiffs moved for summary judgment. In an accompanying memorandum, they argued that the questionnaires were "agency records" within the meaning of the FOIA and therefore must be disclosed unless there was a valid claim of exemption. Distinguishing Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (where the D.C. Court of Appeals denied FOIA access to a secret Congressional document in the possession of the CIA) the plaintiffs contended that the records were clearly under the control of the Department of Justice and were in no sense Congressional records or records over which Congress had indicated an intent to retain control. The questionnaires originated with and were returned to the Justice Department, the memorandum asserted. Further, the plaintiffs argued, the records were not exempt interagency material, since Congress was not an "agency" for purposes of the FOIA. Additionally, the questionnaires contained factual, not advisory, information, and were final, not interim, in nature. Therefore, they were assertedly not part of the deliberative process which Exemption 5 of the FOIA was intended to protect.

On May 29, 1979, the Department of Justice moved to dismiss the complaint or alternatively, for summary judgment. The primary argument advanced to support the motion was that the materials sought by the plaintiffs fell outside the ambit of the FOIA. According to the defendants, the materials sought were not "agency records" within the meaning of the FOIA but were communications between the Senate and the Executive which were "inseparably involved in the process by which the President exercises his constitutional appointment authority." [Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment, May 29, 1979, at 7] The central question, the Department contended, was whether it could be compelled to "disclose communications between non-agencies (ie., the President and Senators, and their representatives) bearing directly and exclusively on their respective constitutional roles in the appointment of federal judges." [Id. at 7-8] Even if the court found the documents at issue were "agency records" within the meaning of the act, the Department argued that, "as direct and vital input to the decision-making process by which the President exercises his constitutional appointment authority such materials fall within the deliberative process privilege incorporated in Exemption 5 of the FOIA." [Id. at 8] Finally, the Department contended that the circumstances of the case were "totally inappropriate" for the relief sought by the plaintiffs, since there were other means through which they could participate in the judicial selection process. [Id. at 31] The plaintiffs could request the materials sought in the suit directly from the Senators who completed the questionnaires, and the Department stated

that it would have no objection to their disclosure through such an agreement.

On June 5, 1979, the plaintiffs filed reply briefs in support of their motions for summary judgment and in opposition to the Justice Department's cross-motion to dismiss. These briefs in essence reiterated the arguments the plaintiffs had made initially regarding the nature of the questionnaires. First, the plaintiffs disputed the Department's contention that the questionnaires were communications between Senators and the President as part of the Article II appointment power. The plaintiffs pointed out that most of the responses were not even prepared by Senators but by their staffs or judicial nominating commissions. Further, the plaintiffs asserted that the information called for in no way revealed the mental processes of the Senators in selecting their nominees or exposed any privileged or confidential information; it was merely objective data indicating whether the merit selection guidelines were followed. Finally, the plaintiffs argued, the questionnaires were merely "ministerial documents designed to assist the Attorney General, not intimate communications from the Attorney General to the President." [Reply Brief in Support of Plaintiffs' Motion for Summary Judgment, June 5, 1979, at 4]

Second, the plaintiffs contended, the questionnaires were "agency records". "They were designed by the Department of Justice, returned to the Department of Justice, and retained by the Department of Justice, all for the purpose of assisting the Attorney General in performing an official duty assigned to him by a presidential Executive Order." [Id. at 6]

Third, the plaintiffs asserted, the questionnaires could not be withheld under Exemption 5 if they were agency records because they were not inter-agency memoranda the disclosure of which would impair the deliberative functions of Government. The information in the questionnaires was "factual in nature and represents a final, rather than an interim, account of what actions Senators took to comply with the merit-selection guidelines." [Id. at 7]

On June 20, 1979, U.S. District Court Judge Barrington Parker ordered the Ryan and Halpern cases consolidated for all purposes. One week later, oral argument was heard on the cross-motions for summary judgment and taken under advisement. Subsequently, the judge ordered the Department to submit for in camera inspection five of the disputed responses to the questionnaire.

On July 11, 1979, District Judge Parker issued an order and judgment finding that there was no genuine issue as to any material fact and concluding that the Department of Justice was entitled to summary judgment as a matter of law. In a memorandum opinion accompanying the order, Judge Parker held that the questionnaire responses were not "agency records" for purposes of the FOIA and that therefore disclosure was not required. [Ryan v. Department of Justice, 474 F.Supp. 735 (D.D.C. 1979)]

The court found that despite the fact that the Justice Department had physical possession of the disputed records, the "questionnaire responses ultimately owe their existence to President Carter's exercise of his Article II constitutional authority to nominate and, by and with the advice and consent of the Senate, appoint Federal Judges." [474 F.

Supp. at 738] The Attorney General, in the court's view, was merely acting at the direction of the President in gathering material on candidates and the nominating process from Senators and the state nominating commissions. Judge Parker explained:

This particular approach to the judicial appointment process makes the status of the questionnaire responses unique. Unlike the congressionally-controlled transcript in Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), they are not documents belonging to the Senators or the state nominating commissions. They are not solely presidential documents or records of the Attorney General. Nor are they, as defendant represents, strictly communications between United States Senators and the President. They are best described as the collective product and property of the President, the Attorney General, the Senators, and the state commissions, none of which are agencies for FOIA purposes. The responses certainly are not under the control of the Department of Justice. Given the presidential appointment context from which the responses originated, they cannot be compared to compliance or other required reports routinely filed with and left in the custody of an executive agency. [Id. (footnote omitted)]

Use of the Department of Justice facilities and staff to process the questionnaires did not, according to Judge Parker, transform the material into "agency records." The Attorney General was not conducting routine Department business but was "acting as counsel and advisor to the President, who is exercising his Article II powers to nominate 117 new federal district judges." [Id. at 739]

Because the court concluded that the questionnaires were not "agency records" for purposes of the FOIA, it did not reach the second legal issue of whether the questionnaire responses, as agency records, would be exempt from disclosure as inter-agency pre-decisional advisory memoranda.

The plaintiffs immediately appealed the district court's decision to the U.S. Court of Appeals for the District of Columbia Circuit and the consolidated cases were considered on an expedited basis.

In their brief, filed on July 25, 1979, the plaintiffs argued that the district court was wrong in holding that the questionnaires were not "agency records" under the FOIA. They disputed the lower court's contention that the responses were somehow special rather than routine in nature and therefore did not fall within the terms of the FOIA. Nowhere in the application of the FOIA was it limited to "routine records," they argued. In any event, the plaintiffs noted, the involvement of the Department in the questionnaires was "pervasive." Fur-` thermore, they asserted, the Attorney General had not been acting as a personal presidential advisor in preparing and sending out the questionnaires. "The Attorney General's role ha[d] all the trappings of an official function, not a personal advisory one. He was acting pursuant to an Executive Order promulgated in accordance with a statutory requirement; he utilized Justice Department staff rather than conferring privately with the President; and he was performing pre

cisely the type of function that the Justice Department customarily performs implementation and enforcement of legal standards." Brief of Plaintiffs-Appellants, July 25, 1979, at 14] Finally, the plaintiffs argued, as they had done in the district court, that the records were not protected from disclosure under Exemption 5 because they were not inter-agency memoranda. They asserted again that the responses were prepared by non-Justice Department personnel (i.e. Senators or their nominating commissions) who were not within the FOIA definition of "agency."

In its brief, filed on August 31, 1979, the Department of Justice also reiterated its arguments in the court below, emphasizing that the Attorney General, in eliciting and compiling information sought in this case, was acting solely as an advisor to the President and not as a cabinet officer conducting the ordinary business of his Department. In Justice's view, therefore, the responses were not "agency records": Plainly, the FOIA would provide no means of directly obtaining the material in question from the President or the respondents to the questionnaires, all of whom are nonagencies within the meaning of the Act. The fortuity of the documents being held within the four walls of the Department of Justice clearly cannot transmute the material into "agency records" when the involvement of the Attorney General and his staff is solely for the purpose of serving the President in the discharge of his constitutional appointment authority. The questionnaires that resulted in the material in dispute were generated directly from the President's instruction to the Attorney General to assist him in identifying nominees for new judgships. The Attorney General himself has no independent role to play in the nomination process, which under the Constitution is the exclusive domain of the President and the Senate. [Brief of Defendants-Appellees, August 31, 1979, at 7]

Even if the court held the responses were "agency records" for purposes of the FOIA, the Department once again argued, the material should not have to be disclosed under Exemption 5 as pre-decisional deliberative memoranda for use by the President in the judicial selection process. While the brief admitted that neither the President nor the Senators and nominating commissions constituted an "agency" under the FOIA, it contended that the court should take a "common approach in its application of the exemption "to assure consistency with its clear policy of protecting governmental decisionmaking." [Id. at 25]

In a reply brief filed on September 14, 1979, the plaintiffs downplayed the possible relationship between the material and the President's Article II appointment power and argued that the "connection between the President and the questionnaire responses is simply too remote to have any constitutional significance." [Reply Brief of Plaintiffs-Appellants, September 14, 1979, at 4] Further, the brief contended, "The record does not contain a shred of evidence demonstrating that disclosure would, in any way, interfere with the President's appointment power." [Id.]