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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

Q. Definition of Agency

Text:

(f) For purposes of this section the term --

(1) "agency" as defined in section 551(1) of this title 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), or any independent regulatory agency; and

(2) "record" and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.

Discussion:

The definition of "agency" is extremely important for it determines those entities within the executive branch of the federal government to which the FOIA (and, as a result of its incorporation of this definition, the Privacy Act) applies. It was not a defined term prior to the 1974 Amendments, and the House of Representatives (whose revision of this amendment was adopted in conference) made it clear that the intent of the definition was to expand the FOIA's scope to

include those entities which may not be considered agencies under section 551(1) of title 5 U.S. Code, but which perform governmental functions and control information of interest to the public. The bill expands the definition of "agency" for purposes of section 552, title 5, United States Code. Its effect is to insure inclusion under the Act of Government corporations, Government controlled corporations, or other establishments with the executive branch, such as the U.S. Postal Service. The term "establishment in the Executive Office of the President," as used in this amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisors, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order. The term "Government corporation," as used in this subsection, would include a corporation that is a wholly government-owned enterprise, established by Congress through statute, such as the St. Lawrence Seaway Development Corporation, the Federal Crop Insurance Corporation (FCIC), the Tennessee Valley Authority (TVA), and the Inter-American Foundation. The term "Government controlled corporation," as used in this subsection, would include a corporation which is not owned by the federal government, such as the National Railroad Passenger Corporation (Amtrak) and the Corporation for Public Broadcasting (CPB).

Source Book II at 128-29.

The Conference Report further clarified what was meant by the inclusion of the Executive Office of the President:

With respect to the meaning of the term "Executive Office of the President," the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971). The term is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.

Source Book II at 232.

Despite the fact that the legislative history quoted above refers expressly to the Council of Economic Advisors as an example of an entity within the Executive Office of the President which was to be defined as an agency, the D.C. Circuit held that it was not an agency. Rushford v. Council of Economic Advisors, 767 F.2d 1038 (D.C. Cir. 1985). The court based this decision on its belief that the language in the House Report had been superseded by that in the Conference Report so that the proper test was a functional one based on Soucie v. David, supra. Thus, the Council was not an agency because its sole function is to advise and assist the President.

The D.C. Circuit also found that the Vice President's Task Force on Regulatory Reform, later renamed the Council on Competitiveness, was not an agency because its sole function was to advise the President and Vice President. Although the majority could point to no conclusive evidence that substantiated this proposition, it found that as a matter of practical politics such an entity played an advisory role. A dissenting judge pointed out that the Task Force had been created by Executive order and had administrative support functions and that, no matter what it appeared to have been used for, it had been created as if it were an agency. Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993).

The Clinton administration took the position, based on language in the D.C. Circuit's second opinion in Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.Cir. 1993) -- a case dealing with, among other matters, to what extent the records of the National Security Council were agency records subject to the Federal Records Act, or presidential records subject to the Presidential Records Act -- that the NSC could not be both an agency and an advisory body to the President; it chose to consider itself solely an advisory body to the President and, through an Executive order, declared itself no longer subject to the FOIA. However, the order said the agency would continue to disclose information along the lines of the FOIA. The case was then heard by the D.C. Circuit, which ruled that the NSC is not an agency subject to FOIA. Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996).

Since this definition was intended as an expansion of the previous definition which had developed through judicial interpretations of 5 U.S.C. §551(1), it does not affect previous decisions holding that an entity was an agency for FOIA purposes. Any pre-1974 decision holding that an entity was not an agency, however, would have to be examined to see whether the result was affected by the amendment.

Certain characteristics have been defined which an entity must be found to possess before it will be held to be an agency. The most important of these is that the entity must have the "authority in law to make decisions." Washington Research Project v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974). Accord, Forsham v. Harris, 445 U.S. 169 (1980); NLRB v. Sears, Roebuck & Co., 421 U.S. 168 (1975); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976); Soucie v. David, supra. Even this fact, however, is not always determinative. Public Citizen Health Group v. HEW, 668 F.2d 533 (D.C.Cir. 1981).

An entity may receive funds from the federal government and even perform work for it, without becoming an agency. In St. Michael's Convalescent Hosp. v. State of Cal., 643 F.2d 1369, 1379 (9th Cir. 1981), the court rejected the argument that "the federal funds received through the Medicaid program and Medicaid's pervasive statutory and regulatory scheme necessarily" transformed the recipient state agencies into federal ones for purposes of the FOIA. The court relied on Forsham v. Harris, supra, to hold that there must be extensive control by the grantor agency over the recipient's day-to-day operations before it could be transformed into an agency.

This question of control has also been emphasized by the same court in holding that the American Red Cross was not an agency. "It is the existence of this element of substantial federal control that distinguishes those entities that can be fairly denominated as federal agencies under the FOIA from the organizations whose activities may be described as merely quasi-public or quasi-governmental." Irwin Memorial, Etc. v. American Red Cross, 640 F.2d 1051, 1055 (9th Cir. 1981). The court recognized that the government exercised a certain degree of control over the Red Cross, but held that it was not sufficient to transform that organization into an agency.

For a well-reasoned opinion holding that the Smithsonian is not an agency, see, Engelking v. Drug Enforcement Administration, 119 F.3d 980 (D.C. Cir. 1998).

The government has unsuccessfully attempted to argue that a cabinet level official, or a separate unit within an agency, is not an agency for FOIA purposes when functioning "in a purely advisory capacity to the President." Ryan v. Dept. of Justice, 617 F.2d 781, 787 (D.C. Cir. 1980). In that case the court held that the Attorney General was still part of the Department of Justice (and thus part of an agency) when advising the President on judgeship nominees. "Once a unit is found to be an agency, this determination will not vary according to the specific function in each individual case." Id. at 788.

In Crooker v. Office of the Pardon Attorney, 614 F.2d 825 (2d Cir. 1980), the court held that this Office was an agency despite the fact that its "sole function is to advise and assist the President." It rejected the argument that the Office was not an agency because the language from the Conference Report of the 1974 Amendments (reprinted above) applies only to "units in the Executive Office," while the Pardon Attorney is a part of the Department of Justice.

As a final point, it should be noted that Congress and the federal courts are expressly excluded from the definition of agency in 5 U.S.C. §551(1), and there is nothing in the expanded definition in Section (f) which encompasses them; thus, they are not subject to the FOIA.

The 1996 Amendments added the definition of "record," but it does not appear to have added anything to existing practice.

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