Background
Michelle Kinnucan sought two volumes of a House Appropriations Committee report concerning Defense Department communications problems examined after Israel’s 1967 attack on the U.S.S. Liberty. The NSA received the report in 1968 and later cited it in an NSA historical report that was declassified and released in 2006.
In 2019, Kinnucan submitted FOIA requests to the NSA for the House report. The NSA located one copy but denied the request, maintaining that the report was created and controlled by the House of Representatives, not an agency record. The district court twice granted summary judgment to the NSA, including after a voluntary remand for further agency disclosures.
The Court’s Holding
The Ninth Circuit affirmed. It adopted the D.C. Circuit’s test for congressional documents transferred to an agency: such a document is not subject to FOIA when, considering the facts and circumstances, Congress clearly manifested an intent to control it.
The NSA met that standard here. Each volume bore the prominent instruction, “NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE,” which the court concluded reflected Congress’s continuing control over disclosure. The report’s classified markings, the NSA’s confidential treatment of it, and the absence of any congressional action relinquishing control reinforced that conclusion. The NSA’s limited internal use of the report and its later publication of a separate historical report that cited it did not make the House report an agency record.
Key Takeaways
- The Ninth Circuit adopted a clear-intent-to-control test for congressional records held by federal agencies.
- An agency’s possession and internal use of a congressional document do not alone make it disclosable under FOIA.
- Congressional markings restricting release can establish that the document remains outside FOIA’s reach.
Why It Matters
The decision aligns the Ninth Circuit with the D.C. and Second Circuits and protects Congress’s ability to share confidential oversight materials with executive agencies without automatically subjecting them to FOIA. Requesters seeking records that Congress has retained control over must pursue them from Congress rather than through an agency FOIA request.