AMERICAN FRIENDS SERVICE COMMITTEE, et al. v. William H. WEBSTER, Director, Federal Bureau of Investigation, et al., Appellants. (Three cases).
Nos. 81-1735, 81-1980 and 83-1025.
United States Court of Appeals, District of Columbia Circuit.
Argued April 25, 1983. Decided Sept. 30, 1983.
It is evident that the district court misconceived the nature and purpose of a temporary restraining order. By ordering American Security to pay the disputed check, the district court did not simply preserve the status quo, but instead summarily resolved all conflicting claims to the check immediately after commencement of the action on short notice to the defendant. At this preliminary stage, no final adjudication was possible. We agree with American Security that this case is no more than a straightforward action on a negotiable instrument and that appellee has an adequate remedy at law. We can say it no better than Judge Learned Hand did sixty years ago:
As to the money, how is it possible to sue in equity? The acts charged constitute, on the plaintiff‘s theory, a conversion, nothing more. Under the guise of a mandatory injunction I do not see how I can give final relief in advance of answer and trial in such a case. It is, of course, true that equity will at times affirmatively restore the status quo ante pending the suit. But never, so far as I know, will it take jurisdiction over a legal claim merely to hurry it along by granting final relief at the outset of the cause. The acts of the defendants may indeed be totally without justification—on that I express no opinion—but there is no reason why the plaintiffs should enjoy remedies not open to others who have suffered similar wrongs. I cannot suppose that it would anywhere be seriously contended that upon a conversion of money the victim might file a bill in equity and get final relief by mandatory injunction.
Sims v. Stuart, 291 F. 707, 707-08 (S.D.N.Y. 1922) (citations omitted); accord In re Arthur Treacher‘s Franchisee Litigation, 689 F.2d 1137, 1144-45 (3d Cir. 1982); Schlosser v. Commonwealth Edison Company, 250 F.2d 478, 480-81 (7th Cir. 1958), cert. denied, 357 U.S. 906, 78 S.Ct. 1150, 2 L.Ed.2d 1156 (1958).
The temporary restraining order issued by the district court is hereby vacated and the case is remanded to the district court for proceedings consistent with this opinion.
Marshall Perlin, New York City, for appellees.
Vern Countryman, Cambridge, was on the brief for amicus curiae, Scholars and Citizens for Freedom of Information, in 81-1735 and 81-1980 urging affirmance.
Before WALD and GINSBURG, Circuit Judges, and VAN PELT,* Senior District Judge, United States District Court for the District of Nebraska.
Opinion for the Court in Parts I-V filed by Circuit Judge WALD.
* Sitting by designation pursuant to
Concurring opinion filed by Senior District Judge VAN PELT.
TABLE OF CONTENTS
| Page | |
| I. THE DISTRICT COURT PROCEEDINGS | 35 |
| II. THE STATUTORY FRAMEWORK | 36 |
| III. JURISDICTION | 38 |
| A. District Court Findings | 38 |
| B. The Government‘s Contentions | 38 |
| C. Analysis of Jurisdiction to Review | 39 |
| 1. Exceptions from Judicial Review | 39 |
| 2. The Effect of Kissinger on Reviewability | 40 |
| 3. Reviewability of the Agency Actions in this Case | 41 |
| 4. Conclusion | 45 |
| IV. STANDING | 45 |
| A. District Court Findings | 45 |
| B. The Government‘s Contentions | 47 |
| C. Analysis of Standing | 49 |
| 1. The “Zone of Interests” Test | 49 |
| 2. The Effect of Kissinger on Plaintiffs’ Standing | 52 |
| 3. The “Zone” Reflected in the Statutory Language | 53 |
| 4. The “Zone” Reflected in the Legislative History | 55 |
| 5. Conclusion | 57 |
| V. COMPLIANCE WITH THE DISPOSAL LAWS | 57 |
| A. District Court Findings | 57 |
| B. The Government‘s Contentions | 59 |
| C. Analysis of Alleged Disposal Violations | 60 |
| 1. Scope of Review | 60 |
| 2. Statutory Responsibilities | 60 |
| 3. Review of Agency Action | 64 |
| a. The 1975 and 1976 Schedules | 64 |
| b. The 1977 Schedule | 67 |
| 4. Conclusion | 68 |
| VI. RESTRICTED USE RECORDS | 69 |
| A. The Relevant NARS Function | 70 |
| B. The Relevant Laws Restricting Use of Records | 70 |
| 1. Tax Returns and Tax Return Information | 70 |
| 2. Grand Jury Materials | 71 |
| 3. Electronic Surveillance (Title III) Materials | 72 |
| C. The Meaning of Section 2906 | 73 |
| D. Conclusion | 77 |
WALD, Circuit Judge:
These consolidated appeals challenge orders of the district court enjoining the disposal of records by the Federal Bureau of Investigation (“FBI“) and directing the National Archives and Records Service (“Archives” or “NARS“) and the FBI jointly to develop a detailed records retention plan and records disposal schedules.1 Appellants are the Attorney General, the Director of the FBI, the Administrator of the General Services Administration (“GSA“), the Archivist of the United States, and various other officials of the FBI and NARS.2 Appellees are individuals and organizations that claim that the FBI‘s records destruction program violates various laws and interferes with their rights to, and interests in, access to FBI records. We find that: (1) appellees may state their claim under the Administrative Procedure Act (“APA“) because the records disposal statutes do not preclude judicial review by committing their implementation to agency discretion; (2) at least some appellees in this case have standing under the records disposal statutes and are arguably within the zone of interests protected by those statutes; (3) the district court correctly found that the FBI and NARS failed to carry out their statutory responsibilities in developing and approving the 1975 and 1976 records disposal schedules for FBI field office files; (4) the
I. THE DISTRICT COURT PROCEEDINGS
Appellees initiated this action on June 26, 1979, alleging that the FBI and NARS had ignored for many years the statutes regulating the management and disposal of federal records. Appellees sought both to enjoin the FBI from destroying its records and to make the FBI‘s files into permanent records retained by the National Archives. On January 10, 1980, after reviewing “[v]oluminous memoranda and other documents” and conducting an evidentiary hearing, the district court, per the Honorable Harold Greene, issued a preliminary injunction halting destruction of FBI records. American Friends Service Committee v. Webster, 485 F.Supp. 222, 225, 236 (D.D.C. 1980). The district court also ordered NARS to develop an FBI records retention plan that met the statutory standards discussed in its opinion and ordered the FBI to formulate records control schedules consistent with that plan. Id. at 236. The court stated that it would lift the injunction upon its approval of the plan and schedules. Id. The government did not appeal this order.
The government subsequently requested exemptions from the ban on destruction for certain classes of records. In orders dated February 20, April 3, and April 22, 1980, the district court granted the government‘s motions in part and denied them in part, amending the preliminary injunction accordingly.3 The government filed a notice of appeal from the district court‘s orders of April 3, and April 22, 1980, but subsequently dismissed the appeal voluntarily. On April 15, 1980, the government sought unsuccessfully to dissolve the district court‘s preliminary injunction for lack of standing—relying on the Supreme Court‘s recent decision in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). See American Friends Service Committee v. Webster, 494 F.Supp. 803 (D.D.C. 1980). The government did not appeal the district court‘s denial of its motion.
In February 1981, more than a year after the district court imposed the preliminary injunction, the court called a hearing to review the government‘s apparent lack of progress in developing and submitting to the court for approval the records retention plan and records control schedules. In a memorandum opinion and order of June 9, 1981, the district court concluded:
that no significant action had been taken to carry out the Court‘s mandate; that the government had no legitimate excuse for its failure to act; and that, except for vague and indefinite plans, no implementing action was being undertaken. American Friends Service Committee v. Webster, No. 79-1655, mem. op. at 3-4 (D.D.C. June 9, 1981) (footnote omitted), reprinted in Appendix (“App.“) at 39, 41-42.
In light of this recalcitrance, the district court set forth detailed remedial procedures in its order “to insure compliance with the laws enacted by the Congress and with its own orders.” See App. at 42, 52-56. The procedural requirements included substantial standard-setting and record examination roles for NARS personnel, who were to receive “full and complete access to all of the files and records of the FBI covered by the [January 10, 1980 order].” App. at 53-55. The “bottom line” of the court‘s order was for NARS:
to submit a recommended retention plan to the FBI by September 28, 1981, [for] the FBI ... to submit a records disposi-
App. at 46, 55. On July 1, 1981, the district court issued an order that made the January 10, 1980 injunction (as amended) permanent.4 Our decision today reviews the government‘s appeals of the district court‘s orders of June 9, and July 1, 1981.
Subsequent orders of the district court dealt in piece-meal fashion with government motions to bar NARS from inspecting certain restricted documents and to permit the FBI to dispose of some other limited categories of materials.5 These proceedings culminated in the district court‘s October 20, 1982 memorandum opinion and order, which in large part denied the government‘s motions to bar inspections by NARS. The government appeals the October 20, 1982 order, which we also review today. See American Friends Service Committee v. Webster, No. 79-1655 (D.D.C. filed Oct. 20, 1982), reprinted in Joint Supplemental Appendix (“J.S.A.“) at 62-78.
While these appeals have been pending, NARS and the FBI have gone forward under the district court‘s order with their preparation of a new FBI records plan and new disposal schedules. The government submitted its records disposal proposal in November 1981, appellees responded in October 1982, and the government replied in February 1983. To date, the district court has not decided whether the government‘s proposal for FBI records preservation and disposal is adequate and should be put into effect.
II. THE STATUTORY FRAMEWORK
The basic laws pertaining to the management, disposal, and archival preservation of federal records are codified at chapters 21 (“Archival Administration“), 29 (“Records Management by Administrator of General Services“), 31 (“Records Management by Federal Agencies“), and 33 (“Disposal of Records“) of title 44 of the United States Code.6 In general, these laws establish a unified system for handling the “life cycle” of federal records—covering their creation, maintenance and use, and eventually their disposal by either destruction or deposit for preservation. Because this case involves allegations of improper destruction of records, our description of the records statutes concentrates on Congress’ directives regarding the selection of records for preservation or elimination.7
The Archivist of the United States, operating subject to the general direction of the Administrator of GSA, plays a number of key roles under the four records management chapters. The Archivist has a general responsibility to “provide guidance and assistance to Federal agencies with respect to records creation, records maintenance and use, and records disposition.”8
In addition, the Archivist plays a major part in the later stages of the records life cycle. He establishes “procedures for the compiling and submitting to him of lists and schedules of records proposed for disposal.”
Finally, the Archivist is in direct charge of the records deposited in the National Archives. This includes, among other tasks, accepting for deposit and, under certain conditions, directing the transfer to the National Archives of federal records that “have sufficient historical or other value to warrant their continued preservation.”
While the records statutes obviously assign the Archivist the responsibility to orchestrate the records management effort, the heads of the various agencies remain responsible for the performance of their own instrumentalities. Each one is to:
make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency‘s activities.
Whether performed by the Archivist or an agency head separately, or by both in tandem, the records management functions are supposed to implement a set of seven objectives listed in
- those which contain “documentation of the organization, functions, policies, decisions, procedures, operations, and essential transactions of an agency” (sections 3101, 3301);
- those having “sufficient historical or other value to warrant their continued preservation” (section 2103);
- those which are necessary to protect the financial and legal rights of persons directly affected by an agency‘s activities (section 3101); and
- those which have sufficient “administrative, legal, research, or other value to warrant their further preservation” (section 3303).
III. JURISDICTION
A. District Court Findings
The district court found that review of the challenged official actions taken under the records management and disposal statutes is available under the APA. First, the court properly pointed out that ”
review is available under the Administrative Procedure Act to determine whether the official actions were arbitrary or capricious, constituted an abuse of discretion, or failed to meet statutory or procedural requirements, and the Court has jurisdiction under
28 U.S.C. § 1331 .
B. The Government‘s Contentions
The government‘s challenge to federal court jurisdiction is based on the exception from judicial review for agency action “committed to agency discretion by law.”
In brief, the government‘s contentions on the nature of Congress’ delegation of responsibility rely heavily on the Supreme Court‘s comments about the records management statutes in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). Kissinger held that the records management statutes do not create a private right of action to compel parties possessing wrongfully removed agency records to return them to the agency; the Court explained that the only remedy for wrongful removal of records under the records statutes is a suit by the Attorney General under
The government‘s argument on “the terms of the delegation” corresponds to the Overton Park “law to apply” test employed by the district court to find jurisdiction. But the government asserts that the records statutes do not provide any “standards by which a court can judge records management and disposal decisions.” Id. at 41. In particular, the government rejects the “standard” for records disposal in
The third characteristic signaling unreviewable discretion to the government is Congress’ retention of an oversight role for itself in the records disposal process. The government points out that “Congress directly exercised the final power of approval [over records disposal schedules] until 1970.” Id. at 45 (citing
Finally, the government states that “[t]he fundamental issue presented by plaintiffs’ claim[,] is who shall make records management and disposal decisions for the federal government.” Government‘s Opening Brief at 40. Our analysis, however, identifies the key issue to be whether Congress intended to foreclose even limited APA judicial review over records disposal actions of an agency or NARS that allegedly violate the records management and disposal statutes.
C. Analysis of Jurisdiction to Review
1. Exceptions from Judicial Review
The Supreme Court has traditionally not been sympathetic to arguments that judicial review is not available under the APA. For example, the Court has stressed that the APA‘s “‘generous review provisions’ must be given a ‘hospitable’ interpretation.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L.Ed. 868 (1955)). It has often reiterated that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories, 387 U.S. at 141, 87 S.Ct. at 1511 (quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962)).9 And more recently the Court has pointed out that it “will not lightly interpret a statute to confer unreviewable power on an administrative agency.” Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454, 99 S.Ct. 2388, 2394, 60 L.Ed.2d 1017 (1979) (citing Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975)).
The Court has reinforced these general strictures in addressing the particular APA exception pressed by the government here—for “agency action ... committed to agency discretion by law.”
While these statements caution that agency action will be reviewable in the vast majority of cases, we must still carefully evaluate the actions and statutes here to see whether that presumption has been overcome. “In practice, the determination of whether there is ‘law’ to apply necessarily turns on pragmatic considerations as to whether an agency determination is the proper subject of judicial review.” Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.C.Cir. 1979) (citations omitted) [hereinafter NRDC v. SEC].
2. The Effect of Kissinger on Reviewability
We first take up the government‘s suggestion that Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), foreclosed the availability of judicial review in this case. Kissinger arose out of FOIA requests that sought access to transcripts of Kissinger‘s telephone conversations during the periods he served as National Security Adviser and as Secretary of State. Kissinger had removed the relevant transcripts from the State Department‘s control and deposited them with the Library of Congress (under an agreement with limits on access). See id. at 139-42, 100 S.Ct. at 963-64. The Attorney General had not taken action, as he is authorized to
do with GSA‘s assistance, see
The government‘s interpretation of Kissinger would of course render meaningless the Court‘s footnote that explicitly left the question of APA review undecided. See id. at 150 n. 5, 100 S.Ct. at 968 n. 5.12 Equally important, the APA action before us involves an alleged abuse of discretion of a very different kind from the one the Kissinger plaintiffs might have raised; the actions here are of a nature that Congress probably intended to be subject to judicial review under the APA. On the Kissinger facts, allegations of breach of duty by agency administrators and the Attorney General could have focused only on the agency actions that permitted removal of documents to the Library of Congress and on the Attorney General‘s decision not to take action to retrieve the documents. This case, on the other hand, involves allegations of unauthorized records destruction and is based on the protections of
3. Reviewability of the Agency Actions in this Case
In NRDC v. SEC, this court identified “three particularly important factors” to guide our analysis of whether Congress definitely intended to commit the implementation of the records disposal laws to agencies’ unreviewable discretion: (1) “the need for judicial supervision to safeguard the interests of the plaintiffs“; (2) “the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role“; and (3) “the appropriateness of the issues raised for judicial review.” 606 F.2d at 1044 (citation omitted).13 “Finally,” the court concluded, one should “inquire whether the considerations in favor of nonreviewability thus identified are sufficiently compelling to rebut the strong presumption of judicial review.” Id.14
As to the first factor listed in NRDC v. SEC, there is substantial need to safeguard plaintiffs’ interests15 through judicial supervision of FBI and NARS actions under these laws. Day-to-day operating needs will always dictate in large part which records an agency maintains; agency personnel will decide which records are in fact preserved even if they are implementing a plan developed in consultation with archivists. But of course these limits on the perfectability of a records program do not propel us to the conclusion that Congress wanted the agencies and NARS to operate without any review. Congress was certainly aware that agencies, left to themselves, have a built-in incentive to dispose of records relating to “mistakes” or, less nefariously, just do not think about preserving “information necessary to protect the legal and financial rights ... of persons directly affected by the agency‘s activities.”
Despite the government‘s arguments that the standards of delegation provide no basis for review, we agree with the district court that there is some “law” to apply.16 Congress itself developed some guidelines, albeit leaving substantial discretion to the agencies. The records disposal standard of
The Federal Records Act of 1950, in which Congress set out the standard in
Furthermore, through both regulations and a Records Management Handbook, NARS has announced additional criteria, based on the statutory standards, for appraising records of permanent value. See
The need to protect plaintiffs’ interests through some type of supervision of agency actions under the records disposal laws—along with some evidence that Congress intended to provide standards on what to preserve—does not of course inexorably lead to the conclusion that judicial review is called for. Congress may have intended an alternative means of supervi-
general, only informs us what bad government is“—records of government action are clearly worth careful review before destruction. T. Jefferson, Writings, vol. I at 207, vol. XI at 223. So Congress thought here.
To sum up our evaluation of NRDC v. SEC‘s first factor, we conclude there is a practical need for supervision of the FBI‘s and NARS’ actions under the records disposal laws in order to protect plaintiffs’ interests. Furthermore, Congress passed statutory language that provides some guidance on which records are to be preserved, so it is possible to review the FBI‘s and NARS’ performance. Finally, Congress gave up formal responsibility for deciding on records disposal plans and delegated that authority to NARS.
The second factor proposed in NRDC v. SEC is “the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role.” 606 F.2d at 1044. The government worries about the demands that may be placed on a small NARS staff. This is a strange argument for the government to put forward because the allegations in this case do not aim at some tangential NARS responsibility, the discharge of which will undermine NARS’ execution of its key mission. NARS’ performance of its duties in the records disposal process is at the heart of NARS’ reason for existence. We are not impressed with the argument that since NARS’ staff is too small to carry out its statutory duties effectively, we should not bother it with review. On the other hand, the FBI‘s prime mission is not in the nature of archival and recordkeeping work. But the government has not maintained that the FBI‘s performance of its core assignments would be hindered by our review. The FBI has, in fact, already developed a detailed internal recordkeeping system (with about 200 basic filing classifications), which serves a valuable support function for its enforcement work and which could provide the structure for disposal schedules.
We recognize, however, that the district court nudged NARS to dig deeply and with considerable effort into the FBI‘s recordkeeping practices in this case. We expect that this experience will turn out to have been an extraordinary one for NARS. First, as we will explain further in Part V.C.2, we do not agree with the district court that all these duties are required (e.g., inspection under
Finally, we believe that the papers NARS and an agency prepare in the course of reaching records disposal decisions should make their actions easily reviewable with little or no extra work for them. The re-
The third factor proposed in NRDC v. SEC is whether the issues are appropriate for judicial review. As noted, it is likely that the records disposal planning process will suitably frame the issues for judicial consideration. It is true that the preparation of records disposal schedules, as parts of a large records system, will involve deliberations about managerial and efficiency concerns. NARS’ tasks also require archival expertise. But we are not being asked to review the FBI‘s management information systems or its cost analyses on how to perform the records preservation job most efficiently.21 Nor are we called upon to second-guess NARS’ reasoned judgment to dispose of certain types of records within specific categories pertaining to historical research or legal rights—such as the FBI‘s campaign against organized crime. We can and should, however, review records disposal plans to determine if there is a rational basis for the FBI‘s and NARS’ decisions on how to deal with files of such obvious interest. Judges are not novices on matters such as whether records have administrative, legal, or research value, or whether records are necessary to protect the legal and financial rights of persons directly affected by an agency‘s acts, see
4. Conclusion
Our analysis of these three factors leads us to conclude that “the considerations in favor of nonreviewability ... are [not] sufficiently compelling to rebut the strong presumption of judicial review.” NRDC v. SEC, 606 F.2d at 1044. Judicial review in this case supplies an important need by ensuring that NARS and the FBI did not overlook plaintiffs’ interests when applying the statutory standards on records disposal and preservation. Second, our review should enhance rather than hinder NARS’ performance, without burdening the FBI. And third, the examination will involve issues within our competence. In the course of this analysis we have discussed and refuted the government‘s three main arguments against reviewability: (1) that in Kissinger the Supreme Court implied that Congress delegated unreviewable discretion to the agencies to destroy their records; (2) that the terms of Congress’ delegation provide no “law to apply“; and (3) that Congress’ retention of an oversight role substitutes for judicial review of records destruction decisions. We stress, however, that we have measured Congress’ intent with a focus on the records preservation and disposal decisions under these statutes. Our action here does not address judicial review of other agency decisions on recordkeeping.
IV. STANDING
A. District Court Findings
The district court addressed the standing issue both before and after the Supreme
(1) a case or controversy ..., that is, if the parties have a sufficiently personal stake ... and ... have suffered injury in fact, and (2) ... a fairly traceable causal connection between the claimed injury and the challenged conduct, such as where the claims asserted are within the zone of interests protected or regulated by the statutes involved.
American Friends Service Committee v. Webster, 485 F.Supp. at 226 (footnote omitted).
Next the court divided the plaintiffs into three categories so as to focus more sharply its application of the standing test. The first group included “individuals and organizations whose claimed need for FBI documents arises out of their professions as historians, journalists, teachers, film writers, or attorneys.” Id. This group had in the past made FOIA requests for FBI documents (which allegedly were destroyed notwithstanding the requests), had other requests pending, and intended to request FBI files in the future. Since the plaintiffs needed the documents for their professional research, the court found that continued records destruction would lead to “concrete and personal damage” to their careers. The court explained that the damage may take the form of economic harm, but at a minimum would be “equivalent to the type of non-economic [aesthetic or environmental] injury recognized ... in United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1972).” 485 F.Supp. at 226-27 (footnote omitted).
The second group of plaintiffs consisted of “individuals who, as subjects of FBI investigations or alleged victims of FBI activities, claim to have suffered legal wrongs.” Id. at 226. The court said that these plaintiffs, who also had requested or intended to request FBI files, had an interest in preserving possible documentary “evidence necessary for legal action to remedy these alleged wrongs.” Id. at 227. Their “stake in this action,” their harm, is “an inability to obtain the FBI documents relating to their particular claims.” Id.
The third category of plaintiffs included organizations that sought to further “civil liberties; civil rights; social, cultural, and economic change; and world peace.” Id. (footnote omitted). These plaintiffs argued that the destruction of FBI files deprived them of primary research materials, from which they could glean and disseminate information for organizational, educational, and political purposes. The court stated that this asserted injury was more questionable. The court concluded, however, that “the plaintiffs in the other groups have adequately shown injury for standing purposes,” so that it need not decide if the organizations in the third category had failed to do so. Id.23
The district court found that all the plaintiffs “satisf[ied] the second prong of the standing test,” including the “zone of interests” requirement:
[T]he various laws here involved govern the creation, preservation, maintenance, and disposal of federal records. These laws are designed primarily for the orderly management of government files, but among their other important purposes is the preservation of documents which may be of use to private citizens.
The district court‘s second opinion on standing responded to a government motion arguing that the intervening Kissinger decision “destroy[ed] plaintiffs’ standing to sue” by undermining the district court‘s conclusion that the plaintiffs were “arguably” within the “zone of interests” of the records management statutes. American Friends Service Committee v. Webster, 494 F.Supp. 803, 804-05 (D.D.C. 1980). A footnote to the district court‘s opinion ably summarizes most of the distinctions between Kissinger and this case:
[O]ne cannot conclude that ... because parties may not have a legally-cognizable interest [a private right of action] in the direct recovery of records which governmental authorities have permitted a private person to take, they also lack an interest, sufficient for standing purposes, in preventing government itself to destroy records which under the terms of the law it is required to retain.
494 F.Supp. at 806 n. 8 (citing Kissinger, 445 U.S. at 150 n. 5, 100 S.Ct. at 968 n. 5). Furthermore, the district court pointed out that Kissinger‘s footnote five left open “the issue whether private parties might have a remedy [through an APA action] in the event the agency heads and the Attorney General breach their duty to enforce the Records Act against unauthorized removals by private parties.” 494 F.Supp. at 805-06 (footnote omitted). Reasoning that it would have been illogical for Kissinger to have left the issue of this APA remedy open at the same time it foreclosed standing to bring the APA action, the district court concluded that Kissinger should not be read to imply that the zone of interests of the records laws does not encompass plaintiffs injured by such an alleged breach of duty. Id.
B. The Government‘s Contentions
The government‘s argument on standing does not question plaintiffs’ injury in fact.24 Instead, the government relies solely on a challenge to the district court‘s finding that the plaintiffs are “not within the zone of interests protected or benefited by the fed-
eral records management and disposal laws.” Government‘s Opening Brief at 30. The government points out that “[s]atisfaction of the zone of interests component of the standing inquiry requires some indicia that the litigant‘s particular interest was intended to be protected, benefited, or regulated by the statute upon which the litigant‘s claim is based.” Id. (emphasis in original) (citing Copper & Brass Fabricators Council, Inc. v. Department of the Treasury, 679 F.2d 951 (D.C.Cir. 1982); Control Data Corp. v. Baldrige, 655 F.2d 283 (D.C. Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981)). The government maintains that the plaintiffs cannot meet the “zone of interests” test because (1) “the language,” (2) “the legislative history,” and (3) “the structure of the federal records management and disposal laws confirm that ‘their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole.‘” Government‘s Opening Brief at 38 (quoting Kissinger, 445 U.S. at 149, 100 S.Ct. at 968).
As for statutory language, the government quotes the purpose of the records management and disposal laws—“to require the establishment of standards and procedures to assure efficient and effective records management,”
The legislative history, the government explains, reinforces these two points. It cites a passage from the Senate Report on the Federal Records Act of 1950 that states that records come into existence first of all to serve administrative purposes26 as evidence that the records statutes’ only purpose is to increase the usefulness of records for agency executives. See Government‘s Opening Brief at 32. The government also contends that the records disposal criteria in
The government tries to erect a Chinese wall between plaintiffs’ interests in this
case and parts of the records statutes that it admits do indicate “that members of the public might have an interest in government records.” Id. at 35. The first of these references to the public interest is in
The government considers the second reference to the public—in
C. Analysis of Standing
1. The “Zone of Interests” Test
To summarize, the government‘s sole argument on standing is that the plaintiffs have not asserted injury to an interest “arguably” within the “zone of interests” protected or regulated by the records management and disposal statutes. We approach the “zone” test with some trepidation. This court has lamented on a number of occasions that the test is amorphous and confusing.27 Our perplexity is not unique; the absence of a clear explanation of the “zone” test by the Supreme Court has led other federal courts to apply the test in divergent fashion.28 There certainly has been no dearth of critics of the test,29 one of whom has even pronounced it “extinct”30—a bit precipitously. The Supreme Court recently restated, in dicta, that the “zone” test remains one of the “prudential principles that bear[s] on the question of standing.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75, 102 S. Ct. 752, 759-60, 70 L. Ed. 2d 700 (1982).31 Therefore, we must endeavor again to make sense of the test.
The Supreme Court introduced the “zone of interests” test in four cases decided in 1970 and 1971.32 The spirit that motivated the test was “the trend . . . toward enlargement of the class of people who may protest administrative action.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The Court stated that this new test stood in the place of the eroded requirement that a party must have a “legal interest”33 in the agency action under challenge. See id. at 153, 90 S.Ct. at 829. And in all four cases the Court found that the litigants met the new “zone” test. Unfortunately, the Court‘s explanation of how the “zone” test should be applied was cursory, and the conclusory nature of its own application was not elucidating.34
Moreover, two members of the Court asserted that the prudential “zone” test was not necessary; they believed that the “injury in fact” test for standing was sufficient. Barlow v. Collins, 397 U.S. 159, 167-70, 90 S.Ct. 832, 838-39, 25 L.Ed.2d 192 (1970) (Brennan, J., joined by White, J., concurring in the result and dissenting).35
This court, like others, has struggled to “mak[e] a principled application of [the ‘zone‘] standard.” Control Data Corp. v. Baldrige, 655 F.2d 283, 293 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981). We have concluded that a court applying the “zone” test “must discern whether the interest asserted by a party in the particular instance is one intended by Congress to be protected or regulated by the statute under which suit is brought.” Id. at 293-94 (footnote omitted)36 (citing Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183, 1188 (D.C.Cir.1972)). Accord Copper & Brass Fabricators Council, Inc. v. Department of the Treasury, 679 F.2d 951, 952 (D.C.Cir.1982) (“zone” standard requires some slight indicia that the statutory intent was to protect, benefit, or regulate the litigant‘s interest). To evaluate whether Congress had such an intent, our court and others generally have looked to relevant statutory provisions and their legislative history. Control Data, 655 F.2d at 294 (footnotes and citations omitted).37 A court obviously has considerable leeway in applying this test, through both its identification of the perimeter of the “zone” of statutory interests and “the nature and quantity of the ‘beneficial indicia’ it requires” to fall within the “zone.” Id. (footnote omitted). This court has stated that “slight beneficiary indicia” are sufficient to sustain standing. Constructores Civiles de Centroamerica, 459 F.2d at 1189.38 Of course if
there is “no evidence of an intent to protect or benefit” plaintiffs, the “zone” test cannot be met. Control Data, 655 F.2d at 295 (emphasis in original).39This guidance on how to apply the “zone” test is not altogether satisfactory. See Copper & Brass Fabricators Council, 679 F.2d at 953-55 (Ginsburg, J., concurring in the result). We have two particular concerns. First, a test that focuses on whether Congress intended to protect or benefit certain interests may be stricter than the Supreme Court‘s statement that the complainant‘s interest need only be “arguably within the zone of interests to be protected or regulated by the statute . . . in question.” Data Processing, 397 U.S. at 153, 90 S.Ct. at 829 (emphasis added). Second, it may run counter to the Court‘s purpose for developing the “zone” test—to enlarge the class of people with standing—to deny standing to parties who have both suffered concrete injury caused by agency action and satisfied other prudential concerns, solely because a search for snippets of congressional language about their particular interest reveals nothing determinative. Cf. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80-81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978) (“Where a party champions his own rights [as distinguished from the rights of a third party], and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met.“) (citations omitted).
Given these concerns with our own court‘s “zone” test, it is especially important in applying the test to keep in mind the Court‘s statement in Valley Forge College—that the prudential principles of standing (including the “zone” test) are “close[ly] relat[ed] to the policies reflected in the Art. III requirement of actual or threatened injury amenable to judicial remedy.” 454 U.S. at 475, 102 S.Ct. at 760.40 The government does not contest in this case any Article III requirements or any prudential limitations other than the “zone” test. Therefore, in examining whether the requisite
2. The Effect of Kissinger on Plaintiffs’ Standing
We turn first to the government‘s assertion that Kissinger should settle the “zone” issue here without further analysis. Like the district court, we cannot accept this short cut through the “zone.” First, Kissinger analyzed the records management statutes to determine whether the plaintiffs could assert a private right of action under those laws. Certainly the relatively rigorous requirements for establishing congressional intent to create a private right of action42 should not be equated with the “slight” indicia standard under the “zone” test. Since Kissinger made its findings about congressional intent in a different context and with a different standard, it would be inappropriate to have them control here absent additional supporting analysis.
Second, Kissinger stated that it was not deciding the question of whether Congress intended private parties to have any remedies under the APA for agency actions in breach of a duty to enforce the records laws. 445 U.S. at 150 n. 5, 100 S.Ct. at 968 n. 5. Like the district court, we cannot reconcile how the Court could leave open the question of an APA remedy for private parties while it also supposedly decided that the records laws would not permit any private plaintiffs the standing to seek the remedy. See American Friends Service Committee v. Webster, 494 F.Supp. at 805-06.
Third, the particular interests of the plaintiffs in Kissinger were different from those of the plaintiffs here. In Kissinger, the plaintiffs wanted the Library of Congress to return allegedly wrongfully removed records to the State Department so that the records could be processed under FOIA requests. In this case, the plaintiffs, who have sought or plan to seek access to FBI records, want to halt alleged wrongful record destruction (no chance of later retrieval or access through another government institution) by the government itself. As we explained above, the “zone” test is supposed to focus on “the interest asserted by a party in the particular instance.” Control Data, 655 F.2d at 293-94 (footnote omitted). Since Kissinger involved interests substantially different from those of the plaintiffs here, we are understandably wary of extending to the plaintiffs’ interests here, without further analysis, Kissinger‘s statements about Congress’ intentions regarding the Kissinger plaintiffs’ interests.
Finally, we decline to accept the government‘s suggestion that one sentence characterizing Senate Report language quoted in Kissinger necessitates our reversal of the district court. The sentence and quotation are as follows:
The legislative history of the [Records] Acts reveals that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. The Senate Report to the
Federal Records Act of 1950 reveals this focus. S.Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). The Report states:“It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them. There is danger of this simple, self-evident fact being lost for lack of emphasis. The measure of effective records management should be its usefulness to the executives who are responsible for accomplishing the substantive purposes of the organization. . . . [The] first interest is in the establishment of a useful system of documentation that will enable [the executive] to have the information he needs available when he needs it.”
Kissinger, 445 U.S. at 149, 100 S.Ct. at 968 (emphasis added).
Thus, the 1950 Senate Report reveals that the records laws are concerned at a minimum with two interests—providing public executives with useful information and disposing of records in an orderly manner. But the quoted passage from the “General Statement” section of the 1950 Senate Report is not a good source of evaluating whether plaintiffs’ interests might be within the “zone” of the records laws concerning disposal, see
3. The “Zone” Reflected in the Statutory Language
The key features of the records disposal system are set out in
Congress may well have considered that it might need to be consulted about records disposition when the disposal decision evoked significant public concern or outrage. As the body representing the public‘s various interests, Congress could best advise NARS about how a disposal decision should take account of “the public interest,” a criterion for consultation identified by § 3303a(c) itself. In practice, we expect that Congress’ counsel to NARS depends in large part on public reactions to and fears about records destruction.44 Therefore, there appears to be an intent underlying this specific consultative mechanism to recognize and protect the public‘s interests in government records (not just the agency‘s interest).
This evidence that Congress expected private parties to have an interest in records preservation is bolstered considerably by
The laws pertaining to the National Archives also provide evidence of Congress’ intent to benefit these plaintiffs through preservation of records of “research” value under §§ 3303, 3303a. The government charily admits, as discussed above, that
The government would ignore this evidence of Congress’ intent to protect and benefit plaintiffs’ interests and seal it off from the “zone” of the records management and disposal laws. The government argues that this case does not involve Archives records. This contention severs the “zone” from the “zone of interests” test. It also ignores the simple, practical fact that government records can only be accepted by the Archives, where they may be made available to the public, if the agency that creates them has not destroyed them first. As explained in Part II, the records management and disposal laws constitute an integrated system for handling records. Under this system agencies generally manage their own records programs, while operating under NARS principles and guidance. When it comes time for an agency to dispose of records, the agency proposes records schedules for disposal to NARS, which must decide whether the schedules meet the § 3303a standard. The term “disposal” itself is defined to include transferring records of “sufficient historical or other value to warrant continued preservation” to the National Archives.
4. The “Zone” Reflected in the Legislative History
We have found in the pertinent records statutes considerably more than slight indicia that Congress intended to benefit and protect some of the plaintiffs’ particular interests in this case. Therefore, we make only a few supplementary supportive points about the legislative history of these laws. First, the government argues that when Congress created the records disposal standard of
Second, we note that the legislative history of the
The head of each Federal agency shall cause to be made and preserved records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency‘s activities.
64 Stat. 586 (emphasis added). Both the Senate and House Reports stated that § 506(a) “provides a general declaration by the Congress [to maintain adequate records].” S.Rep. No. 2140, 81st Cong., 2d Sess. 15 (1950), U.S.Code Cong.Serv. p. 3562 [hereinafter “1950 S.Rep.“]; H.R.Rep. No. 2747, 81st Cong., 2d Sess. 14 (1950) [hereinafter “1950 H.R.Rep.“]. The reports also explained that the provision was necessary because “[s]pecific laws direct the heads of certain agencies to . . . maintain certain records, but there is no general requirement.” 1950 S.Rep. at 15, U.S.Code Cong. Serv. 1950, p. 3562; 1950 H.R.Rep. at 14. The government seizes on the phrases “general declaration” and “general requirement” to imply that Congress did not intend § 506(a) to impose any particular duty. This contention cannot overcome the specific language at the end of the subsection, which imposes a responsibility to preserve records to furnish information to protect the rights of persons directly affected by agency activities. That language imposes a “general” duty in the sense that Congress imposed it without adding exact instructions on implementation and in the sense that the requirement is applied across-the-board to all agencies. Specific laws direct particular agency heads to preserve certain records, as the report language explained, but Congress apparently believed that the need to protect records concerning allegedly injured private parties was a general one extending to all agencies.
Section 507 of the 1950 legislation (codified as amended at
This 50 year limit was reduced to 30 years in 1978, see
The Archivist has no authority [under the pre-1978 law] to remove restrictions placed by agencies until the documents are 50 years old. As a result, requests for restricted documents must be made under the Freedom of Information Act, an inefficient way to deal with large numbers of historical documents.
More careful scrutiny when restrictions are proposed should simplify access problems for the researcher, the agency, and the Archives.
Id. at 2, U.S.Code Cong. & Admin.News 1978, p. 2289 (emphasis added). A letter from the Acting Administrator of GSA, expressing GSA‘s views on the bill to the House committee, also recognized the public‘s interest. This bill, he wrote, “would assure a more equitable balance between protecting those records which legitimately require protection for a period of time and
5. Conclusion
In sum, the legislative history of the records acts supports a finding that Congress intended, expected, and positively desired private researchers and private parties whose rights may have been affected by government actions to have access to the documentary history of the federal government. Of course, that access is subject to various restrictions, including possibly an appropriate delay of time. At this date, however, even a 30-year wait would permit access to records on World War II, the Korean War, the Rosenbergs’ investigation and trial, and the McCarthy era.
Various private parties and the public cannot review records that an agency has destroyed in violation of the disposal laws. This appears to us to be a sufficient interest, given Congress’ expressions about these parties’ and the public‘s expected access to records, to be “arguably” within the “zone” of the disposal statutes. The disposal laws refer to administrative, legal, and research concerns. It is clear that Congress did not expect that only the government would have those concerns and that only the government would benefit from proper disposal practices. In addition, some of the plaintiffs’ interests are even more directly covered by the language of the laws dealing with preservation duties. See
V. COMPLIANCE WITH THE DISPOSAL LAWS
A. District Court Findings
The district court held that:
[t]he evidence . . . shows that the Archivist and those under his supervision have failed for a period of over thirty years adequately to carry out [their] statutory and regulatory responsibilities with respect to the records of the Federal Bureau of Investigation.
American Friends Service Committee v. Webster, 485 F.Supp. at 228.
In its review of the facts, the court stressed that the Archivist rarely exercised any review over FBI records disposal practices during that thirty-year period. Id. at 229. In 1946, the Archives approved an FBI request to destroy all closed field office files, operating under what the court found to be “the [incorrect] theory . . . that these files were mere duplicates of the records . . . maintained at FBI headquarters.” Id. In 1969, NARS “promulgated a new plan purporting to establish document retention standards and providing that FBI records officers would identify the specific series of files to be retained.” Id. (footnote omitted). In 1975 and again in 1976, the FBI made requests, the longest of which was about 150 words (half a page), to dispose of certain field office files, and the Archives granted both promptly. In 1977, NARS approved a slightly more extensive FBI records disposal schedule covering primarily headquarters files. See id. at 229-31.46
The district court found it especially troubling that “[d]uring that entire period, neither in connection with the approval of the various plans and schedules nor during the interim years did a single employee of the Archives see a single FBI file.” Id. at 229 (footnote omitted). Not until 1978, “as a result of media and congressional interest . . . , [did] two or three Archives employees . . . inspect . . . some seventy-six files” at FBI headquarters and several field offices. Id. at 230. “But even that inspection was limited to records which FBI personnel had preselected (after the Archives employees had designated the general areas in which they wished to conduct audits).” Id.47
The court noted that as a result of this extreme deference to the FBI, all NARS decisions were made on the basis of the FBI‘s representations—which “were in some respects incorrect, and in all respects unverified.” Id. at 229. In particular, NARS never ensured “that the FBI, on its own, was preserving not only records suited to its own bureaucratic and operational needs but also records useful for historical and other research and for the safeguarding of legal rights.” Id. at 230.
On the basis of these facts, the district court made its legal conclusion:
It is thus clear that the Archivist never discharged his statutory responsibility to make independent judgments concerning the record retention and destruction practices of the Federal Bureau of Investigation . . . . [T]he Bureau‘s records disposal program, never having been considered and passed upon in any meaningful way by the Archives, cannot continue to be implemented consistently with the statutory mandate that records may be destroyed only pursuant to standards and procedures promulgated and approved by the archival authorities.
Id.
The district court stressed three aspects of NARS’ “archival neglect.” Id.48 First, NARS failed to inspect records. Second, NARS “failed to conduct critical examinations of the [1975, 1976, and 1977] schedules submitted [by the FBI] . . . to ascertain whether, by the FBI‘s own descriptions, records were being retained in accordance with the standards imposed by law.” Id. Third, NARS did not “require the FBI to submit the very minimal forms required under the regulations.” Id.
Finally, the court noted two of the harms caused by the government‘s failure to implement the records laws properly. First, it observed that the destruction of field office files meant that “[r]aw investigative data[,] ordinarily maintained solely in the field offices,” would be lost for all time. Id. at 232. The court remarked that these data are both “the stuff of primary research” for scholars inquiring how and why FBI investigations are conducted, and the core evi-
The second harm was that NARS “acquiesced in . . . FBI measures to escape the burdens of the Freedom of Information Act by disposing of some of its files.” Id. Even though “[i]t appears likely that the agencies’ concerns were . . . limited to minimizing the administrative difficulties,” the court believed “it is clear that the FOIA influenced the drafting of the 1977 schedule and reflected an [impermissible] bias . . . in favor of the destruction . . . of governmental records.” Id. at 233.
B. The Government‘s Contentions
The government offers three challenges to the district court‘s conclusions. First, the government contends that the FBI‘s records disposal system has been, and continues to be, in compliance with the law. It traces the FBI‘s authority to dispose of closed field office files to the 1946 approval of a disposal schedule by Congress’ Joint Committee on the Disposition of Executive Papers. See Government‘s Opening Brief at 48 (citing
Second, the government maintains that it does not have any duty to inspect agency records before it approves of their disposal. In evaluating agency proposals for records disposal, NARS need only “examine the lists and schedules submitted.”
Third, the government attacks the district court‘s conclusion that NARS “abdicated” its statutory responsibilities to the FBI. It argues that it is NARS’ responsibility to set “general standards indicating what kind of records the FBI should preserve,” and the FBI‘s duty to apply those standards. Id. at 57-58. Moreover, the government suggests that the court‘s focus on the 1977 schedule is misplaced because that schedule has never been implemented.49 In addition, the government explains that NARS could “rely on the FBI to apply the standards set in the 1946, 1975, and 1976 records disposal schedules” because Congress approved those basic standards in the 1946 schedule. Id. at 58. And the Records Retention Plan (an approach NARS has abandoned) developed from 1968 to 1970 also supposedly did not
C. Analysis of Alleged Disposal Violations
1. Scope of Review
Under the APA, we “shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The second question is whether the agency actions taken under the statutory authority are “arbitrary and capricious.” The Supreme Court recently summarized the requirements of this standard in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “The scope of review . . . is narrow and a court is not to substitute its judgment for that of the agency.” Id. at 43, 103 S.Ct. at 2866. “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). “In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.‘” Id. (quoting both Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974) and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). Of course, we recognize that there is a major analytical difference between reciting this guidance and applying it to the facts of specific agency action. As this court commented in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031 (D.C.Cir.1979) (footnote omitted):
[T]he concept of “arbitrary and capricious” review defies generalized application and demands, instead, close attention to the nature of the particular problem faced by the agency. The stringency of our review, in a given case, depends upon analysis of a number of factors, including the intent of Congress, as expressed in the relevant statutes . . . ; the needs, expertise, and impartiality of the agency as regards the issue presented; and the ability of the court effectively to evaluate the questions posed.
Id. at 1050, quoted in Office of Communication of the United Church of Christ, 707 F.2d at 1425 n. 22.
2. Statutory Responsibilities
The district court found that NARS failed to carry out a number of statutory and regulatory responsibilities with respect to the disposal of FBI records. First among these omissions was the failure to inspect FBI records. While we agree that NARS’ ability to make independent judgments about records retention and destruction practices would be enhanced by such inspections, we conclude that inspections are not required by law.
In carrying out his duties and responsibilities under this chapter [
44 U.S.C. §§ 2901 to 2909 ], the Administrator . . . or his designee may inspect the records or the records management practices and programs of any Federal agency solely for the purpose of rendering recommendations for the improvement of records management practices and programs.
(Emphasis added.) The use of the word “may” grants permissive authority without requiring any action. Furthermore, the reference to chapter 29, which deals primarily with NARS’ functions of setting standards for and offering advice to agencies, suggests that this inspection authority is not directly linked to the records disposal provisions in chapter 33. While we certainly do not imply that NARS’ inspections and follow-up recommendations on “records management practices and programs” under § 2906 cannot address records disposal and preservation issues, see id. §§ 2902(5), 2905(a), such inspections are not compulsory.
We also cannot find a duty for NARS to inspect records in the statutes dealing specifically with records disposal. Section 3302 requires NARS to promulgate regulations establishing both procedures for compiling and submitting lists and schedules of records for disposal, and procedures for disposing of records. After agencies propose lists or schedules of records for disposal, see id. § 3303, NARS is to examine them (not necessarily the records themselves) under § 3303a. Section 3303a then requires NARS to “determine [] that . . . the records listed in a list or schedule” meet the disposal standards, a mandate that invites record sampling but again does not require it.
The district court‘s one specific citation supporting its finding of a duty to inspect,
The district court also found that NARS misinterpreted its duty under § 3303a to conduct critical examinations of the 1975, 1976, and 1977 FBI disposal schedules before approving them. On its face, § 3303a requires an examination and determination by the GSA Administrator (or NARS) that the records disposal lists and schedules proposed by an agency meet the disposal standards. See also
First, the government suggests that NARS’ duty extends only to setting standards for records retention and providing advice to agencies on how to operate their records programs. True, NARS is required to perform these functions. See, e.g.,
Second, the government contends that the 1975 and 1976 schedules for field office files merely “reaffirmed” the 1946 schedule approved by Congress; therefore, they need no scrutiny. This reasoning would have us rely on a one paragraph description of field office records in the 1946 schedule52—which contains almost no explanation of why these records do not warrant preservation and which Congress approved almost forty years ago—to immunize all FBI field office files from the provisions of §§ 3302, 3303a (and regulations thereunder) until the FBI decides to propose a “non-affirming” schedule. If we accorded such a long reach to the 1946 approval, we would allow the FBI to circumvent Congress’ subsequent statutory instructions on records preservation duties and retention standards, see, e.g.,
Congress did not intend to grant the FBI such a blank check for records disposal. Section 3314 states that “[t]he procedures prescribed by [chapter 33] are exclusive, and records of the United States Govern-
The government‘s argument is further undercut by its own regulations. The present regulations define “temporary records” as records that the Archivist has determined to be of insufficient value to warrant preservation.
Finally, the government proposes that we need not review NARS’ approval of the 1977 schedule because it has never been put into effect.54 Because Congress and the public expressed fears about FBI records destruction, NARS decided to seek congressional advice under § 3303a(c) after approving but before implementing the 1977 schedule. To the best of our knowledge, Congress never responded to NARS’ request, either positively or negatively. Therefore, NARS and the FBI decided not to take any action under the 1977 schedule; the government asserts “that no general disposal of FBI headquarters records ever has taken place.” Government‘s Opening Brief at 14 (citation omitted).
We do not believe that this hiatus warrants our passing over the 1977 schedule. NARS has approved the schedule in accord with the requirements of § 3303a. There is nothing in the language of § 3303a(c) that suggests that NARS and the FBI could not put the 1977 schedule into effect after seeking Congress’ advice (especially after getting no response). Indeed, the FBI would be in violation of the records regulations if it does not have a records disposition program55 covering headquarters files and “a
comprehensive records schedule for all records in its custody.”
In sum, we find that NARS does not have a statutory duty to inspect FBI records, but has a duty under § 3303a to examine the FBI‘s records disposal schedules and to reject the schedules if they do not meet the preservation and disposal standards. As discussed above, the Director of the FBI also has a duty under § 3101 to preserve certain agency records. The regulatory process and standards governing the preparation and evaluation of these schedules has changed slightly over the past ten years. But the changes in regulations have not been significant for purposes of our review: The FBI has continually had the duty to prepare records disposal schedules for at least all major groups of its records (both headquarters and field office systems should have been addressed), and NARS has continually had the duty to examine the schedules to ensure that they meet the disposition standards. Therefore, we must review the FBI‘s three records disposal schedules—1975, 1976, 1977—to determine whether the FBI and NARS have properly carried out their statutory responsibilities.
3. Review of Agency Action
a. The 1975 and 1976 Schedules
The 197557 and 197658 schedules provide almost no explanation of why the FBI sought to destroy field office materials. The only two nuggets of guidance we can mine from these schedules are that the “[f]iles no longer possess sufficient reference or evidentiary value to merit retention” (1975), and “[t]he originals, duplicates or summarizations of substance . . . are contained in the permanent files of the [FBI] Headquarters” (1976). J.S.A. at 362A, 369. The 1975 comment only parrots part of the statutory standard to be met. The 1976 statement only tells us that some originals and copies of field office files are sent to headquarters while other files are summarized—without explaining which types of records receive which treatment, the reason for using summaries in some situations, and the information that should be incorporated in the summaries. Neither
The 1975 and 1976 schedules also do not articulate any connection between factual findings about the nature of the information in these records (or why certain types of summaries suffice under the preservation and disposal standards), and the decision to classify the records as without appropriate value and thereby as suitable for destruction. The two schedules make it clear that the FBI was only concerned about preserving records that might serve its own institutional needs.
We are not insisting that the FBI must necessarily preserve “raw investigative data.” What we ask for, and what the “arbitrary and capricious” test of the APA requires, is some reasoned justification explaining why certain types or categories of investigative data should be destroyed under the preservation standard of § 3101 and the disposal standard of § 3303a. The same sort of justification is necessary to explain the FBI‘s decisions, with NARS’ approval, to retain summaries of field office files and to destroy the original documents upon which the summaries are based. We do not disagree with the government‘s general point that the FBI may satisfactorily summarize much investigative data. But the summaries need to account in some reasonable fashion for historical research interests and the rights of affected individuals—not just the FBI‘s immediate, operational needs.
We suspect that decisions on which field office files to preserve and what summaries are sufficient might depend on factors such as the type of investigation and alleged crime, the individuals involved, and the connections to events of historic interest. But it is not our role to dictate explanatory criteria for disposal decisions; this was the task NARS and the FBI should have performed within the requirements of §§ 3101, 3303, 3303a.
The district court found that the FBI‘s disposal schedules for field office files were based on an incorrect assumption by the FBI and NARS that all field office documents were duplicated at FBI headquarters. We acknowledge the government‘s objection on this point, but we do not find this debate over the meaning of “duplication” to be central here. Even if all the pertinent employees of the FBI and NARS recognized that the concept of duplication included summarization, the FBI or NARS would still need to explain, as they have not, why these summaries justified destruction of the underlying field office documents. This justification would have to address the means through which the FBI determined, for different types of records, that the information that must be preserved under §§ 3101, 3303a would be part of the summaries.
The government also seems to make the argument that no explanation for the 1975 and 1976 disposal schedules is necessary because Congress approved the laconic 1946 schedule under the same preservation standard carried forward by § 3303a. Again, this would neatly exclude future disposal of FBI field office files from § 3303a examination and, understandably, we cannot reconcile that result with Congress’ actions after 1946. Congress imposed the § 3101 preservation duty in 1950; surely we must hold subsequent schedules to its standard. Congress also gave NARS the job of evaluating disposal requests in 1970
The 1975 and 1976 schedules do not even meet the government‘s own standards of explanation as established in its regulations. The regulations in effect at the time NARS approved the two schedules stated that “[a]ll schedules shall take into account the actual filing arrangements in existence.”
We do not see how NARS could have made a rational evaluation and determination of the FBI‘s records disposal proposals on the basis of these schedules. If NARS had undertaken a thorough investigation, it might have been able to compensate for the lack of explanation in the schedules by providing its own justification for our review. But NARS did not do so.61 Moreover, the schedules would still fail to include any reasonable instructions for records disposal that could ensure that the §§ 3101, 3303a preservation and disposal requirements would be observed. It is almost inconceivable that any explanation could justify these broad disposal instructions. Furthermore, “[t]he reviewing court should not attempt itself to make up for such deficiencies: ‘We may not supply a reasoned basis for the agency‘s action that the agency itself has not given.‘” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 103 S.Ct. at 2867 (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. at 285-86, 95 S.Ct. at 441-42 and citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947)). NARS simply has not explained why it exercised its discretion to approve the 1975 and 1976 schedules, which definitely do not carry the weight of a justifiable explanation themselves.
b. The 1977 Schedule
The 1977 schedule is a more complete effort than the 1975 and 1976 versions. See J.S.A. at 384-96. It begins by describing the content and arrangement of the central records system, including the approximately 200 core classifications (generally by type of violation) for subject matter files. See id. at 384, 391-96. But the schedule refers to that system only twice: to state that administrative files (covering policies and procedures) of each classification will be preserved permanently, and to explain that the criminal, security, and applicant investigative files under 18 classifications (and all classifications created in the future) will be subject to “specific retention guidelines” determined by NARS. Id. at 386, 390. The schedule does not explain why the 18 classifications warrant special guidelines.
In general, investigative files warrant permanent retention under the schedule if they meet one of five criteria. See id. at 387-88.62 The schedule admits that “the criteria [are] general in nature and selection is basically a matter of informed judgment.” Id. at 387. The schedule divides investigative files that do not merit permanent retention into four groups (criminal, security, applicant, and conflicts with the
Clearly the heart of the schedule is the list of five criteria employed to screen permanent investigative files. The district court found “these criteria [to be] excessively and unnecessarily vague.” American Friends Service Committee v. Webster, 485 F.Supp. at 231 (footnote omitted). The district court believed that such vagueness was unnecessary because the schedule could have drawn on the approximately 200 file classifications (by type of crime) “to define more specifically the criteria for retention of files.” Id. at 231 n. 23. We agree that the schedule would be improved if it incorporated the specificity of the subject matter classifications. This integration would also better serve the requirement in the regulations to “take into account the existing filing system so that destruction or transfer can be handled in blocks.”
We also do not accept the district court‘s finding that the 1977 schedule was in some way tainted because the FBI and NARS, in the course of developing the schedule, discussed the fact that there would be administrative burdens associated with the FOIA. We cannot expect agency recordkeepers to remain oblivious to major legislation that will materially affect their jobs. Indeed, they would not be serving the records statutes’ objectives relating to efficient management unless they considered such events. Absent some indication that a desire to avoid FOIA responsibilities led the FBI to schedule the destruction of records that should have been preserved, we will examine the schedules for compliance with the law without a presumption of wrongful intent.
There are, however, three respects in which the 1977 schedule falls short. First, the schedule does not take into account the § 3101 requirement to preserve information pertaining to the legal rights of persons directly affected by the FBI‘s activities. Second, the schedule‘s treatment of “transitory documents,” like its few comments about field office files, does not reveal a glimmer of recognition that these records may be of administrative, legal, or research value—or that they might contain important information about how the FBI affected individuals’ legal rights. We need some explanation of why these records (or which ones) need not be preserved. Third, the schedule fails to provide any reason why 18 classifications (and all new ones) are excluded from disposition standards for criminal, security, and applicant investigative files. It is far from obvious to us why NARS needs to determine specific retention guidelines for records classifications as diverse as “Training Schools,” “Subversive Matter (Individuals),” and the “Labor Management Relations Act, 1947.” J.S.A. at 391, 394.
In sum, the 1977 schedule fails in three respects to justify NARS’ approval. And NARS has not provided any other suitable justification. NARS’ approval of the 1977 schedule does not comport with its obligation under § 3303a, and the FBI‘s submission of the schedule reveals that it overlooked its records preservation and disposal duties under §§ 3101, 3303.
4. Conclusion
Our analysis of the alleged records disposal violations reveals that NARS does not have a duty to inspect FBI records, but does have a statutory responsibility to subject the FBI‘s proposed disposal schedules to critical scrutiny to ascertain whether they are in accord with the statutory standards of §§ 3101, 3303a. In addition, the FBI has the duties to preserve certain record information under § 3101 and to propose the disposal of records in conformity with the requirements of § 3303. Neither NARS nor the FBI performed their statutory re-
After the district court found that the FBI and NARS had not carried out their statutory responsibilities, the court required them to formulate and submit to it a records retention plan and disposal schedules consistent with that plan. American Friends Service Committee v. Webster, 485 F.Supp. at 236. When the district court determined at a hearing over a year later that NARS and the FBI had not taken significant action to carry out the court‘s mandate, the court issued a more detailed order designed to insure compliance with the records disposal laws. See American Friends Service Committee v. Webster, No. 79-1655, mem. op. at 3, 5-8 (D.D.C. June 9, 1981), reprinted in App. at 41, 43-46. In light of NARS’ and the FBI‘s inability or unwillingness to begin remedying the noncomplying disposal schedules over the course of a year, we believe the district court was within its authority to issue that detailed order and we will not disturb it except as explained in Part VI, which follows. While we have found that records inspections by NARS are not required by statute, we will not interfere either with the district court‘s discretion to order inspections to insure compliance with its mandate in this case. However, the district court‘s evaluation of the proposed FBI disposal schedule for headquarters records should take into account our finding that the FBI‘s 1977 schedule for headquarters files is deficient in only three respects, as explained above.
GINSBURG, Circuit Judge:
VI. RESTRICTED USE RECORDS
After the district court‘s January 10, 1980, order enjoining destruction of FBI records,63 the government filed a series of modification requests. Several of the government‘s requests were granted. The appeal in No. 83-1025 concerns three requested modifications that the district court denied.
The district court‘s June 9, 1981, order directed the FBI to open for inspection by NARS files and records covered by the January 10, 1980, injunction. Three categories of records, the government maintains, are immunized by law from the Archives’ inspection access: tax returns and tax return information; grand jury materials; and electronic surveillance materials. In an order and memorandum filed October 20, 1982, the district court ruled that the FBI must allow NARS to inspect the records in question. American Friends Service Committee v. Webster, No. 79-1655 (D.D.C. filed Oct. 20, 1982) (“Mem. op. of Oct. 20, 1982“), reprinted in J.S.A. at 62-78.64 The government seeks our review of that ruling.
We hold that the district court erred in denying the three modifications at issue. As we read the centrally relevant statute,
A. The Relevant NARS Function
Pursuant to the Administrator of GSA‘s delegation,65 NARS performs four distinct functions. The appeal in 83-1025 dominantly concerns the function we list fourth. First, and probably best known to the public, NARS accepts for deposit in the National Archives records the Archivist determines “to have sufficient historical or other value to warrant their continued preservation by the United States Government.”
The provision on which the appeal in No. 83-1025 centers,
Records, the use of which is restricted by law or for reasons of national security or the public interest, shall be inspected, in accordance with regulations promulgated by the [Archives], subject to the approval of the head of the agency concerned or of the President.
We explain first why we conclude that part of what Congress meant is not in doubt in this case: The description, “[r]ecords, the use of which is restricted by law,” fits each of the record categories in question, and the laws restricting use contain no exception for records management inspection by the Archives. Next, we treat the critical, less readily answered issue: What authority did Congress vest in “the head of the agency concerned or . . . the President” with respect to the Archives’ inspection, again for records management purposes, of “restricted use” records?
B. The Relevant Laws Restricting the Use of Records
1. Tax Returns and Tax Return Information
The government‘s motion to exclude tax returns and tax return information in FBI files from the Archives’ records management inspection rests on section 6103 of the Internal Revenue Code,
Subsection 6103(n) provides:
Pursuant to regulations prescribed by the Secretary, returns and return information may be disclosed to any person . . . to the extent necessary in connection with the processing, storage, transmission, and reproduction of such returns and return information, and the programming, maintenance, repair, testing, and procurement of equipment, for purposes of tax administration.
Subsection 6103(n), moreover, authorizes disclosure to persons who perform recordkeeping services “for purposes of tax administration.” See
In sum, section 6103 concededly restricts the use of tax returns and tax return information. We have located no provision in the section that authorizes NARS inspection for the records management purpose at issue in this case.
2. Grand Jury Materials
Disclosure . . . may be made to—
(i) an attorney for the government for use in the performance of such attorney‘s duty; and
(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney‘s duty to enforce federal criminal law.
Disclosure . . . may also be made—
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
Appellees do not suggest, nor could they reasonably do so, that inspection by the Archives qualifies under the exceptions for government attorneys, personnel assisting government attorneys in the performance of criminal law enforcement duties, or defendants who show that grounds for dismissal of an indictment may exist. They assert, however, that the exception listed third applies here: “[U]nder the very terms . . . of Rule 6, the district court was empowered to determine that it was necessary in connection with this judicial proceeding to have the Archives examine records of the FBI made up of grand jury transcripts and material.” Brief for Appellees at 28.
We reject appellees’ potentially rule-swallowing reading of the “judicial proceeding” exception.
3. Electronic Surveillance (Title III) Materials
Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
Here too, we see no room for debate concerning the qualification of the materials in question as “[r]ecords, the use of which is restricted by law.”
The section 2517 subsections set out above permit, respectively, disclosure of electronic surveillance materials to, and use of the materials by, investigative and law enforcement officers in the proper performance of official duties. Congress, the legislative history securely indicates, had in mind information sharing “within the law enforcement community.” S.Rep. No. 1097, 90th Cong., 2d Sess. 99 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112. See also id. at 91. It envisioned “use of the contents of intercepted communications, for example, to establish probable cause for arrest, to establish probable cause to search, or to develop witnesses.” Id. at 99 (citations omitted). See also
Moreover,
shall be made available to the judge issuing [the order that authorized the surveillance] and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years . . . .
See also United States v. Abraham, 541 F.2d 624, 627 (6th Cir.1976) (Title III materials must be treated as “confidential court records“). The order before us for review, to the extent that it directs inspection of Title III materials, is not in harmony with the controlling role Congress assigned to the district judge who superintended the surveillance.
C. The Meaning of Section 2906
The qualification of
Through 1976 amendments to
Prior to 1976, section 2906 read:
Personal inspection and survey of records
The Administrator of General Services may inspect or survey personally or by deputy the records of any Federal agency, and make surveys of records management and records disposal practices in agencies. Officials and employees of agencies shall give him full cooperation in inspections and surveys. Records, the use of which is restricted by law or for reasons of national security or the public interest, shall be inspected or surveyed in accordance with regulation[s] promulgated by the Administrator, subject to the approval of the head of the custodial agency.
Act of Oct. 22, 1968, Pub.L. No. 90-620, § 2906, 82 Stat. 1238, 1297 (amended 1976). As altered by the Federal Records Management Amendments of 1976, Pub.L. No. 94-575, § 2(a)(3), 90 Stat. 2723, 2725-26, section 2906 today provides:
Inspection of agency records
(a)(1) In carrying out his duties and responsibilities under this chapter, the Administrator of General Services or his designee [the Archives] may inspect the records or the records management practices and programs of any Federal agency solely for the purpose of rendering recommendations for the improvement of records management practices and programs. Officers and employees of such agencies shall cooperate fully in such inspections, subject to the provisions of paragraphs (2) and (3) of this subsection.
(2) Records, the use of which is restricted by law or for reasons of national security or the public interest, shall be inspected, in accordance with regulations promulgated by the Administrator, subject to the approval of the head of the agency concerned or of the President.
(3) If the Administrator or his designee inspects a record, as provided in this subsection, which is contained in a system of records which is subject to section 552a of title 5 [the Privacy Act], such record shall be—
(A) maintained by the Administrator or his designee as a record contained in a system of records; or
(B) deemed to be a record contained in a system of records for purposes of subsections (b), (c), and (i) of section 552a of title 5.
(b) In conducting the inspection of agency records provided for in subsection (a) of this section, the Administrator or his designee shall, in addition to complying with the provisions of law cited in subsection (a)(3), comply with all other Federal laws and be subject to the sanctions provided therein.
The district court believed that, by “explicitly reiterat[ing] the comprehensive scope of the Archives’ mandate” in subsection 2906(a)(1), and “add[ing] specific provisions for the protection [from disclosure to others] of information within the review of the Archives” in subsections 2906(a)(3) & (b), Congress resolved “the tension between archival and privacy statutes.” Mem. op. of June 9, 1981, at 10, reprinted in App. at 48. Congress did so, the district court concluded, by emphasizing that the Archives had a broad mandate to inspect records to make recommendations for improving federal agencies’ records management practices; in carrying out its large authority, however, the Archives would be subject to the strictures contained in the
The Committee desired to reiterate its position that the GSA Administrator or his designee would have the authority to inspect records in order to make recommendations for improving records management practices and programs. At the same time, the Committee intended to make clear that protections contained in the Privacy Act of 1974 regarding the disclosure of personal information apply to such activities of GSA. Due to the large and broad mandate given to the GSA to inspect the records of other Federal agencies and the requirement that such agencies give the GSA full cooperation in such inspections, it was felt that strong protection be provided for the protection of the personal information maintained about citizens which might be kept in certain government files.
S.Rep. No. 94-1326, 94th Cong., 2d Sess. 6 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6150, 6155, quoted in Mem. op. of June 9, 1981, at 10, reprinted in App. at 48. We note too that the phrase in section 2906(a)(2), “or of the President,” was added by the 1976 amendments and occasioned this explanation from the Senate Committee: “By adding [that phrase], the statute provides for a clearly defined process in those instances where the Administrator and the agency head cannot agree on inspection procedures.” S.Rep. No. 94-1326, supra, at 10, U.S.Code Cong. & Admin.News 1976, p. 6158.
In our view, the language of section 2906, originally and as amended, does not support the district court‘s interpretation, and we find the legislative history cloudy. Subsection 2906(a)(1), tracking the prior provision, states that the Administrator “may inspect the records of any Federal agency solely for the purpose of rendering recommendations for the improvement of records management practices and programs.”
If Plaintiff-appellees’ reading of subsections 2906(a)(1), (2) is correct, the Archives would be permitted, but not required, to inspect records, use of which is not restricted by law, while NARS inspection of records, “the use of which is restricted by law,” would be mandatory, subject only to settlement between the Archives and the agency head or the President of the procedures for carrying out the inspection. We would hesitate long before concluding that Congress mandated the Archives to inspect, for records management purposes, the nation‘s most sensitive and closely guarded records, and only those records. Absent an unmistakable legislative instruction to that effect, we resist the reading appellees urge. It seems to us far more plausible that Congress meant to limit, not to command, NARS records management review of restricted use records by conditioning such inspection on approval of the highest executive authorities—the agency head or the President.
Supporting our view, the Senate Committee Report states:
[T]he only substantive change in the House-passed [version of section 2906] was to permit the President, as well as the agency head, to allow for the inspec
tion of an agency‘s record[s] when the use of such records is restricted by law or for reasons of national security or the public interest.
S.Rep. No. 94-1326, supra, at 6, U.S.Code Cong. & Admin.News 1976, p. 6154. See also H.R.Rep. No. 94-1426, 94th Cong., 2d Sess. 8 (1976). Moreover, during floor debate on the 1976 amendments, Senator Percy, who played a prominent role in the revision of section 2906, said that subsection 2906(a)(2)
requires the approval of the head of an agency or the President before [the Archives] may inspect records, the use of which is restricted by law or for reasons of national security or the public interest. When access is approved to such records, [the Archives] shall issue regulations to govern such inspections, subject to the approval of the agency head or the President.
122 Cong.Rec. 34559 (1976). We do not adopt Senator Percy‘s “double approval” interpretation—approval by the agency head or the President of both the inspection and the regulations setting procedures for its execution. But we do agree that section 2906, sensibly read, both before and after the 1976 reformulation, calls for top level executive approval before NARS undertakes inspection of restricted use records for purposes of improving agency management of such records.
The district court, as earlier observed,74 regarded as highly significant the specifications in subsections 2906(a)(3) & (b) that, if NARS inspects a record, its inspection shall comply with the Privacy Act and other federal laws. These specifications, the district court believed, showed that Congress envisioned NARS inspection in all cases without approval of the agency head or the President. We read subsections 2906(a)(3) & (b) as carrying less weight. In our view, they simply prescribe the care NARS is to take whenever it inspects records, whether pursuant to the general authorization in subsection 2906(a)(1) or, in the case of restricted use records covered by subsection 2906(a)(2), upon approval of the agency head or the President.
In sum, as we read section 2906, Congress did provide for a limited exception to laws restricting access to the records of federal agencies.75 But the exception operates only when the agency head or the President determines that the Archives should inspect the records to assist the agency in their sound management. The Archives has general authority to inspect agency records to “render[] recommendations for the improvement of records management practices and programs,”
We note, finally, that our holding does not deal with NARS’ “archival administration” function, governed by
D. Conclusion
The district court‘s June 9, 1981, order directed the FBI to allow NARS inspection of files and records covered by the January 10, 1980, injunction. We agree with the government‘s contention that three categories of records in the FBI‘s possession—tax returns and tax return information, grand jury materials, and electronic surveillance materials—fall within the statutory description, “[r]ecords, the use of which is restricted by law.”
For the reasons stated in Parts I-V, the district court‘s orders of June 9 and July 1, 1981 are affirmed insofar as they accord with our instructions and explanation in Part V.C.4.
For the reasons stated in Part VI, the district court‘s October 20, 1982, order is reversed insofar as it requires the FBI to permit NARS to inspect, for records management purposes, tax returns and tax return information, grand jury materials, and electronic surveillance [Title III] materials.
It is so ordered.
VAN PELT, Senior District Judge, concurring:
My colleagues have written well in the preparing of this opinion with which I concur. I do not attempt to improve upon their language or add to the scholarship which is evident to any reader. I choose only to express certain concerns and the belief that the FBI and other defendants can live with this opinion.
I would mention that if the schedules hereafter to be furnished are sufficiently detailed, NARS, in my opinion, may be able to satisfy its mandate without actual inspection.
While all cases and their records are important, I make particular mention of the tax records, grand jury proceedings, and electronic surveillance records. These records do fall under and are governed by Section 2906(a)(2). NARS’ management of these records is limited. My concurrence is based upon the belief that NARS’ inspection can only occur with the approval of the agency head or the President. It seems apparent that if the President thought a record or document should be restricted for reasons of national security or public interest and an agency head disagreed and tried to disregard a President‘s views of national security or the public interest, termination of the agency head‘s authority could and would be sure and certain and sufficient to ensure that irreparable harm would not occur.
I do not read into this law any intention on the part of the Congress to make easy the second-guessing of Judges like Irving R. Kaufman who have conscientiously made rulings which do not satisfy descendants of some of the parties, or to further overwork certain overworked agencies such as the FBI, or embarrass or punish its director whose work has been a source of pride to the judiciary from which he came.
Rather, I believe this opinion strengthens departmental and presidential control, places sensitive records outside NARS’ jurisdiction and assists the Congress in answering satisfactorily the problems with which it was confronted, namely the handling of records, the use of which is and should be restricted.
PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Calaveras County Water District, Northern California Power Agency, Intervenors.
CALAVERAS COUNTY WATER DISTRICT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Northern California Power Agency, Pacific Gas and Electric Company, Intervenors.
NORTHERN CALIFORNIA POWER AGENCY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Calaveras County Water District, Pacific Gas and Electric Company, Intervenors.
Nos. 82-2021, 82-2026 and 82-2030.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1983.
Decided Oct. 11, 1983.
Notes
445 U.S. at 150 n. 5, 100 S.Ct. at 968 n. 5.We need not decide what remedies might be available to private plaintiffs complaining that the administrators and the Attorney General have breached a duty to enforce the Records Act, since no such action was brought here. See
5 U.S.C. §§ 704 ,701(a)(2) ,706(1) .
We find this a twisted reading of Justice Brennan‘s statement, which dealt with his “uncertainty about the contours of the ‘improper withholding’ standard” under FOIA. 445 U.S. at 158, 100 S.Ct. at 972. He explained that the public access purpose of FOIA may well mean that agencies “have a responsibility to retain possession of, or control over,” “records incorporated into Government decisionmaking.” Id. at 159, 100 S.Ct. at 973 (citation omitted). But he was unsure “where to draw the line.” Id. at 160, 100 S.Ct. at 973. Justice Brennan suggested that courts were “ill-suited” for the task of drawing that line: Because the “improper withholding” standard failed to clarify which records the government should maintain under FOIA, Justice Brennan found that standard “analytically [un]satisfying,” not the statutory standards for records preservation and disposal. Indeed, Justice Brennan concluded that to resolve the case at hand, he would accept Justice Stevens’ “practicable” approach of relying on “the record statutes ... [,] which formulate document retention criteria that are not unduly burdensome and that carry a congressional imprimatur.” Id. at 160-61, 100 S.Ct. at 973-74 (emphasis added). The records criteria that Justice Stevens cited are those of
Government‘s Opening Brief at 32 (quoting S.Rep. No. 2140, 81st Cong., 2d Sess. 4 (1950), U.S.Code Cong.Serv. 1950, p. 3547) (emphasis added).“It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them.”
Nothing we say implies that records should “come into existence ... to satisfy ... archival needs.” Nor do we doubt that once the records have been created that their prime function is to serve as information sources for public executives. But the plain language of
Local 2855 involved
The standing inquiry focuses on the substance of the agency action, its adverse impact on the plaintiff, and the types of interests that the applicable law is designed to protect. The would-be plaintiff‘s interest in the relevant law is ascertained by injury in fact; the law‘s interest in the would-be plaintiff is determined by the “zone of interests” test. Mutuality of interest must be credibly asserted.
Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 259 (D.C.Cir. 1983).Id. at 139 (footnotes omitted).[s]ome courts have chosen to ignore the zone test; at least one circuit court has chosen forthrightly to state its opposition to the test. Perhaps the most common pattern is to announce in conclusory terms that the zone standard has or has not been satisfied.
Control Data, 655 F.2d at 294 n. 19 (quoting Tax Analysts, 566 F.2d at 142 n. 76).“We are aware of the confusion surrounding the meaning of which interests are relevant to the zone test . . . Essentially, the confusion surrounds what exactly has to fall within the relevant zone: 1) the parties themselves; 2) the interests of the parties in general; or 3) the particular interest the parties are asserting in the litigation. It seems clear to us that the particular interests are the relevant interests . . . .”
See also Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C.Cir.1982) (disappointed bidder had standing to allege failure to abide by statutes and regulations governing contract awards because it was within “zone” of laws regulating awards, but did not have standing to allege maladministration of the contract because it was not within the “zone” of those rules, which are intended to protect the government, not bidders); Howes Leather Co. v. Carmen, 680 F.2d 818 (D.C.Cir.1982) (per curiam) (consumer of stockpiled goods arguably within “zone” of
Pub.L. No. 81-754, § 506(a), 64 Stat. 583, 586 (codified atThe head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency‘s activities.
There have been other moratoria on the destruction of particular files dealing with national security investigations, litigation, intelligence activities, and assassinations—some at the request of congressional committees. All these moratoria were voluntary on the part of the Department of Justice and the FBI and, absent a court order, could have been ended by them at any time. See id. at 229 n. 13, 234 n. 32. In response to a question at oral argument, government counsel stated that he believed all
After approving the 1977 schedule, the Archivist submitted it to Congress for advice pursuant to
American Friends Service Committee v. Webster, 485 F.Supp. at 234.the FBI‘s relationship to this country‘s history and the legal rights of its citizens is unique, and the intensity of the scrutiny to which its files should be subjected before they are authorized to be destroyed must reflect that uniqueness.
Under prior regulations, NARS was to work with agencies to develop “a records retention plan designating the permanently valuable classes of records.”
We note that under that prior regulatory scheme, NARS’ inspection of the FBI‘s portion of the plan, whether or not the FBI sent it to NARS, may have been sufficient so long as the FBI submitted lists and schedules of records for disposal to NARS for approval under
J.S.A. at 369.Files, index cards, and related material which are maintained in FBI Field Offices pertaining to cases in which there was no prosecutive action undertaken; perpetrators of violations not developed during investigation; or investigation revealed allegations were unsubstantiated or not within the investigative jurisdiction of the Bureau. These investigations closed in field offices and correspondence not forwarded to FBI Headquarters [sic]. Files no longer possess sufficient reference or evidentiary value to merit retention.
J.S.A. at 362A.Closed files of the Federal Bureau of Investigation Field Division containing investigative reports, inter- and intra-office communications, related evidence, notes, photographs, documents and correspondence prepared, collected or received during the course of public business in accordance with the FBI investigative mandate.
The originals, duplicates or summarizations of substance from closed files are contained in the permanent files of the Federal Bureau of Investigation Headquarters until further disposition is made in accordance with authority contained in the Records Control Schedule. (This is an extensive and broadening of disposal schedule # 346-S237, approved 3/5/46, to cover changes in reporting requirements wherein only data of substance is forwarded to Headquarters and other related material no longer serves a useful purpose.)
NARS’ 1978 report discusses FBI disposal practices in greater detail than do the disposal schedules, but its treatment of investigative data and field office files still reflects an insensitivity to research needs that do not correspond to the FBI‘s purposes for retaining records. In discussing field office records that should be preserved in headquarters files, the report stated approvingly that the FBI documented “productive aspects” of investigations that were of “value in bringing a case to a logical conclusion.” Defendants’ Exhibit 32, section IV at 5. Records of interviews, surveillance, searches, and evidence that were not of such value may or may not be summarized, and the primary materials would be left in field office files slated for eventual destruction. See id. NARS did not consider that certain records may be of particular interest to historians, researchers, or other private parties even though the records were not of value to the FBI in making investigative decisions. This approach toward records preservation is too limited. For example, a researcher may find an FBI informant‘s reports on his involvement with the Ku Klux Klan of great historical value (or related to private rights) even though those reports may not have helped the FBI to make an investigative decision.
NARS’ assumption that FBI headquarters summaries are always sufficient to maintain all information of value involves a similar oversight: In certain cases that invoke substantial public or historical interest, it will be valuable for researchers to examine primary source material instead of relying on secondary source
In sum, the 1978 report does not provide a suitable subsequent reasoned justification for NARS’ approval of the 1975 and 1976 disposal schedules and, insofar as it provides some explanation for disposal practices, it does not require new instructions in the schedules to ensure that FBI personnel will preserve the appropriate records.
- The investigation or case has significant impact on law enforcement policies or procedures, agency rules or regulations, or investigative and intelligence techniques;
- The investigation or case involves an actual or potential breakdown of public order (civil disturbance) of major proportions;
- The investigation or case directly involves a full-field investigation for: (a) a subversive or extremist organization, with or without foreign connections; or (b) a person or persons holding a major leadership position within such an organization;
- The investigation or case directly involves a person, element, or organization whose activities are deemed to pose a substantial and compelling threat to the conduct of national defense or foreign policy;
- The investigation or case is significant in terms of intensity of public interest, expressed by (a) a demonstrated interest of a Congressional committee or the Executive Office of the President, or (b) a high degree of national media attention.