National Security Council and Others Who Advise the President Are Not Subject to FOIA — Test for Determining Exempt Status — When Equitable Estoppel May be Asserted against the Federal Government

From Electronic Privacy Information Center v. National Security Agency, 2011 U.S. Dist. LEXIS 72751 (D.D.C. July 7, 2011):

The text of FOIA makes clear that the statute applies to "agenc[ies]" only. See 5 U.S.C. § 552(a) ("Each agency shall make available to the public information as follows..."). The statutory definition of an "agency" explicitly includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President). See 5 U.S.C. § 552(f). Using legislative history as its guide, however, the Supreme Court has held that "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President are not included within the term 'agency' under the FOIA." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 (1980) (quoting H.R. Rep. No. 93-1380, at 15 (1974) (Conf. Rep.)) (internal quotations and citations omitted).

The National Security Act of 1947 established the NSC to "advise the President with respect to the integration of domestic, foreign, and military policies relating to national security." 50 U.S.C. § 402(a); Armstrong, 90 F.3d at 556. Pursuant to the Reorganization Plan No. 4 of 1949, the NSC was transferred to the Executive Office of the President. Reorg. Plan No. 4 of 1949, 14 Fed. Reg. 5227, 63 Stat. 1067 (1949).

This Circuit has unambiguously held that the NSC is not an agency subject to FOIA. Armstrong, 90 F.3d at 565 ("[W]e hold that . . . the NSC is not an agency subject to the FOIA."); see also Citizens for Responsibility and Ethics in Wash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009) ("Nor is the National Security Council . . . covered by FOIA because it plays no 'substantive role apart from that of the President, as opposed to a coordinating role on behalf of the President.'") (quoting Armstrong, 90 F.3d at 565); Alexander v. FBI, 691 F. Supp. 2d 182, 189 (D.D.C. 2010) ("[T]he National Security Council [and certain other Executive offices] have all been excluded from FOIA's definition of agency because they are either part of the President's immediate staff or have the sole function of advising and assisting the President."). In ruling that the NSC is not an agency subject to FOIA, the D.C. Circuit in Armstrong applied a three-factor test to determine whether an entity is an agency subject to FOIA. See Armstrong, 90 F.3d at 558-65 (applying three-factor test described in Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993)). The test requires the court to inquire into (1) "how close operationally the group is to the President," (2) "whether it has a self-contained structure," and (3) "the nature of its delegat[ed]" authority. Id. These three factors do not need to be weighed equally; rather, each factor warrants consideration insofar as it is illuminating in the particular case. Armstrong, 90 F.3d at 558. The court found that the NSC has a firm structure, making it similar to an agency, but ultimately concluded that because the NSC operates in such close proximity to the President — who chairs it — and does not exercise substantial independent authority, it is "more like the President's immediate personal staff." Id. at 567. Accordingly, the D.C. Circuit held that the "NSC is not an agency within the meaning of the FOIA." Id at 556. That conclusion is binding upon this Court.

Organizations that are not an "agency" under FOIA are neither required to respond to a FOIA request nor subject to a FOIA lawsuit. See Citizens for Responsibility and Ethics in Wash., 566 F.3d at 225; Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). Since the D.C. Circuit squarely held in Armstrong that the NSC is not an agency subject to FOIA, the NSC cannot be compelled to respond to a FOIA request.

The plaintiff attempts to distinguish Armstrong because the FOIA request in that case was made directly to the NSC, while, in this case, the NSA referred the request to the NSC. See Pl.'s Opp'n to Defs.' Partial Mot. to Dismiss ("Pl.'s Opp'n") at 3. The plaintiff contends that, by referring the FOIA request to the NSC, the NSA "treat[ed] the NSC as if it were an agency subject to the FOIA," and therefore this Court should find the NSC subject to FOIA in this case. Id at 4.

The plaintiff's argument is unpersuasive. It is true that agencies that receive FOIA requests and discover responsive documents that were created by another agency may forward, or "refer," those requests to the agency that "originated" the document. See Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *6 (D.D.C. Mar. 19, 2009) ("A 'referral' occurs when, in the course of reviewing documents responsive to a FOIA [ ] request, an agency finds a document that was originated by a second agency. When that occurs, the agency receiving the FOIA [ ] request forwards, or 'refers,' the document(s) at issue to the second agency, which then becomes responsible for directly responding to the requester as to those documents.") (internal citations omitted). Here, however, the question is whether an entity that is not an agency subject to FOIA must respond to a FOIA request referred from an agency that is subject to FOIA. This question appears to be one of first impression in this Circuit, since neither the parties nor the Court have located authority that directly addresses the issue. The Court finds the answer to this question to be clear-cut: The answer is no. An entity that is not subject to FOIA cannot unilaterally be made subject to the statute by any action of an agency, including referral of a FOIA request. It would defy logic and well-settled legal norms if an agency could unilaterally expand the scope of FOIA by referring requests to entities beyond FOIA's ambit.

The plaintiff points out, correctly, that the NSA's internal regulations permit it to refer FOIA requests for records originated "by other agencies" to "the originating agency's FOIA Authority." 32 C.F.R. § 299.5(k). Yet, by referring the plaintiff's FOIA request to the NSC — which is not an "agency" for FOIA purposes — the NSA does not thereby transform the NSC into an agency and render the NSC "subject to the FOIA with respect to this request," as the plaintiff alleges. Compl. ¶ 65. As an agency within the Executive Branch, the NSA does not have the power to expand FOIA's reach beyond the scope intended by Congress. See Emily's List v. FEC, 581 F.3d 1, 26 (D.C. Cir. 2009) ("The Executive Branch cannot make law, but instead executes laws enacted by the Legislative Branch."). "[A]n agency literally has no power to act . . . unless and until Congress confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). As the Supreme Court has explained, "[a]n agency may not confer power upon itself. To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do." Id. at 374-75; see also Cal. Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 398 (D.C. Cir. 2004). Even assuming, arguendo, that the NSA's regulations authorized a referral to the NSC, the NSA's regulations cannot trump Congressional intent to exclude close presidential advisors from FOIA. See Kissinger, 455 U.S. at 156; see also Armstrong, 90 F.3d at 558.

The plaintiff further argues that even if the NSC is not technically an "agency" subject to the FOIA, the NSA should be held to its representation "that the NSC would 'review' the request and provide a 'direct response.'" Pl.'s Opp'n at 4. Indeed, the plaintiff contends reliance on this representation was reasonable since, before the D.C. Circuit decided in Armstrong that the NSC was not subject to FOIA, the NSC had voluntarily responded to certain FOIA requests while asserting that it was not statutorily required to do so. See Pl.'s Opp'n at 4-5 (citing Armstrong, 90 F.3d at 557, 566). This argument essentially rests on an equitable estoppel theory, but equitable estoppel is not available against the federal government, except where the plaintiff has relied on the government's conduct "in such a manner as to change [its] position for the worse," and where the government has engaged in "affirmative misconduct." Morris Commc'ns, Inc. v. FCC, 566 F.3d 184, 191 (D.C. Cir. 2009). Such circumstances are absent from this case. See, e.g., id. at 192 (finding an agency's "three-year silence" in response to a request for waiver of automatic cancellation of radio licenses was "egregious" but did not constitute "affirmative misconduct"). Moreover, the D.C. Circuit expressly addressed the issue of the NSC's prior voluntary disclosures in Armstrong: "That the NSC . . . voluntarily subjected certain of its records to the FOIA and the [Federal Records Act] does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to those statutes." Armstrong, 90 F.3d at 566. In short, the law in this Circuit since Armstrong is that the NSC is not subject to FOIA requests.

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