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Media Alerts - Cause of Action v. National Archives and Records Administration
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May 23, 2014
  Cause of Action v. National Archives and Records Administration
Headline: Legislative branch does not forfeit FOIA exemption by transferring records to the National Archives.

Area of Law: Freedom of Information Act

Issue Presented: Whether a legislative commission's records, exempt from FOIA while the commission produced, retained, and relied upon those documents, became subject to FOIA when the commission turned its records over to the National Archives, an agency within the executive branch.

Brief Summary: Like all other entities within the legislative branch, the Financial Crisis Inquiry Commission, a legislative branch agency charged with reporting and investigating the causes of the economic crisis, is not subject to the Freedom of Information Act. 5 U.S.C. § 552(a)(4)(B). Upon disbanding in 2011, the Commission transferred its records to the National Archives, an agency within the executive branch that is covered by FOIA. Cause of Action submitted a FOIA request to the Archives seeking Commission records. The Archives denied the request on the basis of § 552(a)(4)(B), and Cause of Action filed suit. The United States District Court for the District of Columbia determined that the Commission's records were not agency records subject to FOIA and granted the Archives' motion to dismiss. Cause of Action appealed.

The United States Court of Appeals for the District of Columbia Circuit affirmed. The court noted that its prior decisions had assumed that transfer of non-covered documents to the Archives did not convert them to records subject to FOIA, and it observed that regulations of the Archives likewise presumed that FOIA covered only executive branch records. The court declined to use its four-factor Burka test to determine whether the Archives had sufficient control over the documents, finding the test "an uncertain guide" with "particularly problematic" application where documents were simply deposited with and catalogued by the Archives. The court noted that in the context of the Archives, application of the four-factor test did not further FOIA's objective of revealing to the public how federal agencies operate. Because the main function of the Archives is merely preservation, and because the Archives does not use the documents in any operational way, the court found itself confident that Congress intended the FOIA exemption to follow the records.

For the full text of the opinion, please see

Panel: Henderson, Kavanaugh, and Randolph.

Argument Date: February 19, 2014

Date of Issued Opinion: May 23, 2014

Docket Number: 13-5127

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Daniel Epstein, Marie A. Connelly, Patrick J. Massari, and Reed D. Rubinstein for Appellant. Christine N. Kohl, Stuart F. Delery, Ronald C. Machen Jr., Leonard Schaitman, and Edward Himmelfarb for Appellee.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/23/2014 02:36 PM     DC Circuit  

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