Kinnucan v. National Security Agency, 2:20-cv-01309

Plaintiff Michelle Kinnucan sought release of a classified congressional report (the "HAC Report") on the 1967 USS Liberty incident from the NSA under FOIA.
The HAC Report was created by House Appropriations Committee staff and addressed Department of Defense communication failures during the Liberty incident.
NSA obtained a copy of the HAC Report in 1968, which bore a banner: "NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE."
The NSA has denied multiple FOIA requests for the report, asserting it is a congressional record and not subject to FOIA disclosure.
Prior litigation and a Ninth Circuit remand led to disclosure of newly-located related materials, but not the report itself.
The core dispute is whether the NSA’s copy of the HAC Report is an agency record subject to FOIA or a congressional record exempt from disclosure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the HAC Report an agency record subject to FOIA?	NSA controls the document and uses it, so it is an agency record regardless of creator's intent.	Congress intended to maintain control, as shown by creation context and restrictive banners.	Report is a congressional record; not subject to FOIA.
Is congressional intent relevant to FOIA control?	Creator’s intent is irrelevant; control should be based on agency use and possession per Supreme Court standards.	Congressional intent is central when determining control over congressional records in agency hands.	Congressional intent is key for congressional records.
Should restrictive markings affect FOIA status?	Markings alone are insufficient if the agency can use or access the record for its business.	Explicit "NOT FOR RELEASE" banners evidence Congress’s intent to maintain secrecy and control.	Markings indicate intent to retain congressional control.
Were conditions imposed on transfer to the NSA?	No evidence of return demand or explicit limits on NSA’s internal use; implies agency control.	Transfer conditions (banner, limited circulation) show intended congressional restriction.	Transfer was conditional, preserving congressional control.

United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (agency control over records means more than possession)
Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (congressional records in agency hands not subject to FOIA if Congress intends to control)
United We Stand Am., Inc. v. I.R.S., 359 F.3d 595 (D.C. Cir. 2004) (FOIA cannot override Congress's prerogative to preserve secrecy)
Am. C.L. Union v. CIA, 823 F.3d 655 (D.C. Cir. 2016) (control over congressional records in agencies turns on Congress’s clear intent)
Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983) (if no confidentiality markings from Congress, transferred records may become agency records)