PROFS case

August 9, 1993

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
___________________________________
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
)
v. )
C.A. No. 89-0142 CRR )
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
Defendants )
)
_____________________________________________)
PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL
PRODUCTION OF VAUGHN INDEX OF PRINTED COPIES OF
RECORDS OBTAINED BY DEFENDANTS PURSUANT TO SUBPOENA
IN UNITED STATES v. WEINBERGER

Introduction
Although they acknowledged four months ago that the
printed National Security Council ("NSC") electronic mail
records at issue here contain historically valuable
information, the defendants and Mr. Weinberger now seek to
prevent any disclosure of these records to historians or
researchers on the basis that Judge Hogan's orders in
United States v. Weinberger are intended to prevent the
release of records that would otherwise be available under
the Freedom of Information Act, 5 U.S.C. ' 552 ("FOIA").
In doing so, both the government and Mr. Weinberger
advance interpretations of Judge Hogan's orders that are
not only untenable, but are designed to frustrate the
Court's mandate. Although the March 26, 1993 Order
directs that the materials be "preserved at the National
Archives for historical purposes," Defs' Exhibit A, 6 1,
the National Archives claims that the Order absolutely
prohibits the disclosure of any of the records to
historians, such as the plaintiffs here. Moreover,
despite the fact that the Protective Order specifically
provides that all the information subject to its
provisions "is now and will remain the property of the
Government," Defs' Exhibit B, Protective Order 6 11, Mr.
Weinberger (with the acquiescence of the government)
claims that the NSC records are now subject to his
"exclusive control."
Examination of the orders entered by Judge Hogan
shows that these claims are meritless. A court order
supersedes an agency's obligation to disclose records
under the FOIA if, and only if, the agency can demonstrate
that the order was issued with "the intent to prohibit the
[agency] from disclosing [the records]." Morgan v. United
States Department of Justice, 923 F.2d 195, 197 (D.C. Cir.
1991) (emphasis added); accord GTE Sylvania, Inc. v.
Consumers Union of the United States, Inc., 445 U.S. 375
(1980). The Protective Order at issue here, however, is
designed only to prohibit Mr. Weinberger's defense from
improperly disclosing classified and potentially
classified information; it is not intended to prohibit any
agency from declassifying and disclosing those records
that are not properly classified. Moreover, the order
does not alter the fact that these are government, not
private, records -- and the government remains responsible
for handling them in accordance with its obligations under
the FOIA and other federal records laws.
Plaintiffs believe that it is apparent from the face of
Judge Hogan's orders that Mr. Weinberger's and the
governments' claims must be rejected. If there is any
doubt, the Court of Appeals has stated that the proper
course is for the agency claiming that it is restrained to
seek a clarification of the effect and intent of the
Order. Morgan, 923 F.2d at 198. Accordingly, if the Court
believes clarification is appropriate, plaintiffs urge
prompt referral of the motion papers to Judge Hogan for an
"authoritative interpretation," id., of whether the orders
entered in United States v. Weinberger are intended to
give Mr. Weinberger exclusive control and to prohibit the
National Archives from releasing records that are
otherwise subject to the FOIA, as the government and Mr.
Weinberger now claim.
**1. While the government and Mr. Weinberger repeatedly
refer to the orders entered in United States v. Weinberger
as orders of a separate court, it is clear that they are
orders of this Court, albeit entered by another judge**
Prompt resolution of this issue is necessary because,
as emphasized in our opening motion, defendants' refusal
to process plaintiffs' FOIA request with respect to these
printed electronic mail records is delaying resolution of
the FOIA issues in this proceeding. Prompt referral of
the issue is also appropriate in light of the National
Archives' disclosure that -- despite Judge Hogan's
mandate that the Archives preserve the material for
"historical purposes" -- the Archives has taken no action
"to review, catalog, or obtain any intellectual control
over this material." See Decl. of Gary L. Brooks 6 8.
Moreover, the National Archives has not sought any
clarification of its responsibilities from Judge Hogan
and, instead, has been negotiating its own
"interpretations of the court's orders" with Mr.
Weinberger's lawyers. Id. 6 6. In doing so, the National
Archives appears to have seriously misconstrued Judge
Hogan's mandate. Rather than carrying-out its role in
preserving government records for historical purposes,
the National Archives has chosen to simply serve "as a
storage facility" for Mr. Weinberger. Decl. of Gary L.
Brooks 6 8; see also Defendants' Opposition to
Plaintiffs' Motion to Compel Production of A Vaughn Index
at 8 ("Defs' Opp."); Memorandum in Support of Caspar W.
Weinberg's Motion To Intervene To Oppose Plaintiffs'
Motion to Compel Production Of A Vaughn Index at 10
("Weinberger Opp.")
Representations Made By The Government and Mr.
Weinberger in United States v. Weinberger And in This
Action
Before addressing the specific arguments advanced for
their claim that Judge Hogan's has effectively entered a
"gag" order that precludes any disclosure of the NSC
records at issue here, it is useful to contrast the
government's and Mr. Weinberger's present positions with
the representations they made before Judge Hogan just four
months ago.
First, before Judge Hogan the government and Mr.
Weinberger recognized that the records were historically
valuable and that many may be subject to declassification.
**2. See Department of Justice Memorandum in Opposition to
Defendants' Motion to Modify Protective Order at 2-3 (Feb.
26, 1993); Office of Independent Counsel's Memorandum in
Opposition To Defendant's Motion for Protective Order at 3-
4 (Feb. 26, 1993); memorandum of Points and Authorities in
Support of Caspar W. Weinberger's Motion to Modify
Protective Order at 5-13 (Feb. 2, 1993); Defs' Exhibit E,
Transcript of March 25, 1993 at 34:11-22**
The Independent Counsel represented, without contradiction,
that "[w]hoever [i.e. the Library of Congress or the
National Archives] gets these materials will, of course,
organize them and process them and in the end make them
available to scholars." Defs' Exhibit E, Transcript of
March 25, 1993 at 21:5-6. Ironically, the National
Archives now states that it is taking no steps to process
the materials for historical research. Moreover, now that
historians and researchers are actually seeking access to
these materials, the government and Mr. Weinberger maintain
that disclosure is absolutely prohibited.
Second, there was no dispute before Judge Hogan that
these records were the property of the government. Id. at
46:14-22.
But both the government and Mr. Weinberger now argue that
the government's ownership is essentially meaningless
because the Protective Order transferred to Mr. Weinberger
virtually all the rights normally associated with
ownership. Indeed, Mr. Weinberger refers to the materials
as "documents in the hands of private parties," that are
subject to the "exclusive control," of Mr. Weinberger and
his defense counsel. Weinberger Opp. at 14-15.
Third, there was no claim before Judge Hogan that the
Protective Order was intended to, or would have the effect
of, altering the government's obligations under the federal
records laws. Now, however, the government and Mr.
Weinberger claim that orders have a profound effect and are
intended to achieve an objective that was never discussed,
namely, to preclude any disclosure of the records under the
FOIA and transfer exclusive control over them to Mr.
Weinberger.
Moreover, as noted in our initial memorandum, the
government has maintained a disingenuous silence on the
relevance of the Federal Records Act. Just a few weeks
before the motion to amend the Protective Order was heard
this Court ruled that the electronic mail systems from
which these records were taken are "records" under the
Federal Records Act that the Archivist has a responsibility
to appraise and preserve if they have historical value.
See 44 U.S.C. '' 3301-3314; Armstrong v. Executive Office
of the President, 810 F. Supp. 335 (D.D.C. 1993); see also
Armstrong v. Bush, 924 F.2d 282, 285 (D.C. Cir. 1991) (No
records may be "alienated or destroyed" except pursuant to
the provisions of the Federal Records Acts). Yet the
government made no mention of this obligation to Judge
Hogan. In its latest papers, the government still makes no
effort to explain how its current position can be
reconciled with the obligation of the Archivist and the
agencies to preserve historically valuable records.
As we show below, the government and Mr. Weinberger's
characterizations of the proceedings in United States v.
Weinberger do not withstand scrutiny. In entering the
March 26, 1993 Order, Judge Hogan explicitly noted that
it was not intended to simply serve the private interests
of Mr. Weinberger in his defense, but to ensure
"additionally, that for historical purposes, these
matters are preserved for the future." Defs' Exhibit E,
Transcript of March 25, 1993 at 44:6-15. Judge Hogan's
directive that the National Archives undertake this
responsibility is consistent with -- if not compelled by
-- the statutory mandate that the Archivist shall provide
for the preservation, arrangement, and indexing of
records transferred to the Archives. 44 U.S.C. ' 2109.
Neither the initial Protective Order nor the March 26,
1993 Order can be read to alter the status of the
materials as agency records, or to nullify the
government's obligation to make them available to
historians and researchers under the FOIA.
ARGUMENT I. THE ORDERS IN UNITED STATES v. WEINBERGER DO
NOT ALTER THE GOVERNMENT'S OBLIGATION TO PROCESS THE
RECORDS AT ISSUE UNDER THE FOIA.
As described in our present motion, the materials
transferred to the National Archives included printed NSC
electronic mail records that are among those covered by the
FOIA request pending in this action. Plaintiffs seek to
compel defendants to release or identify an exemption for
withholding these materials, as required by the FOIA.
Defendants and Mr. Weinberger now claim that the Protective
Order entered in United States v. Weinberger precludes the
release of records that would otherwise be subject to the
FOIA based on two legal theories. First, they claim that
these NSC records, unlike others printed from the same
backup tapes, are not "agency records" under the FOIA
because of the Protective Order. Second, they claim that
the records are not "improperly withheld" because the
Protective Order is intended to prohibit the agency from
releasing records even if they are subject to disclosure
under the FOIA.
Although the terms of the Protective Order itself show
that these claims are without merit, the error in these
contentions is also apparent from considering the purpose
of protective orders like that at issue here under the
Classified Information Procedures Act ("CIPA"), 18 U.S.C.
App. IV ' 3. First, the purpose of the CIPA is to provide
procedures for giving criminal defendants access to
classified information and potentially classified
information relevant to their defense. Thus, the privilege
conferred upon defense counsel by the Protective Order is
"access to classified information." See Defs' Exhibit B,
Protective Order, 66 2.c, 4, 8. Nothing in the Protective
Order transfers "control" to the defendant. Indeed, the
Order makes explicit that the only privilege conferred on
the defendant and counsel is "access" because the
information covered by the Protective Order "is now and
will remain the property of the government." Id. 6 11.
Second, the protection provided by the Protective
Order is not protection against government declassification
of its own records, but a prohibition on defendant and his
counsel disclosing information they receive under the
Order, except in accordance with the CIPA. In Morgan v.
United States Department of Justice, 923 F.2d at 197, the
Court of Appeals observed that a protective order that
prohibits a certain means of access to records (e.g.
viewing them in a court file) may not be intended to affect
future decisions by the agency to release the same records
in response to a FOIA request. With respect to the
government's obligations, Protective Orders under the CIPA
are not designed to supplant the laws governing agency
classification and declassification of the information.
Many materials obtained under the CIPA have not been
classified but are treated as classified because their
classification status has not yet been determined. As Mr.
Weinberger's counsel in this case acknowledged:
Your Honor, keep in mind that remember the -- you know, it
very well may be that much of this information will, will
be declassified. Under the purview of the protective
order, to the extent we got a document in discovery, it's
presumed to be classified. For all I know, 200,000 pages
of the in excess of 250[,000] are not classified, but under
the order, there was this underlying presumption that
everything obtained was classified.
Defs' Exhibit E, Transcript of March 25, 1993 at 34:18-24.
The Protective Order recognizes that these materials are
subject to declassification, and does not prohibit agencies
from declassifying and disclosing them where appropriate.
It provides that "any document received by defendant in
discovery from any United States Government agency or
entity shall be presumed to contain classified information
until otherwise determined by the appropriate agency or
entity." Exhibit B, Protective Order 6 1.a (emphasis
added).
With these considerations in mind, we turn to the two legal
theories offered by the government and Mr. Weinberger.
A. The Protective Order Does Not Alter The Fact That
The NSC's Electronic Mail Records Are Agency Records.
The "agency records" status of the NSC electronic mail
records at issue here is evident from three undisputed
facts: (1) the records were created by NSC staff in 1986
and 1987 on an agency- installed and operated computer
system; (2) the records are, and always have been, the
property of the government; and (3) the records are in the
custody of a federal agency. No case has ever held or
suggested that agency-authored records, owned by the
government, and in the possession of an agency could be
regarded as anything but "agency records" under the FOIA.
The contrary arguments by the government and Mr. Weinberger
are based on ignoring the origin of these records and
mischaracterizing the terms of the Protective Order.
First, both disregard the fact that these records were
created and filed by NSC staff conducting government
business during the Reagan Administration. Indeed, this is
precisely the reason that they were potentially relevant to
Mr. Weinberger's defense of the indictment in United States
v. Weinberger. The government's argument that the records
are not agency records because the particular copies at
issue were printed in response to a subpoena, Defs' Opp. at
16, is specious. Copies of agency records made to comply
with a subpoena for agency records are still agency
records, and there is no authority to the contrary.
Second, the records are, and always have been,
government property. The Protective Order is explicit on
this point. Defs' Exhibit B, Protective Order 6 11. The
NSC and other government agencies were equally emphatic in
asserting their ownership in the proceedings concerning
modification of the Protective Order.
**3. Department of Justice Memorandum in Opposition to
Defendant's Motion to Modify Protective Order (Feb. 26,
1993).**
Moreover, the printing of these records was all done by
government employees at government expense. See Defs'
Exhibit E, Transcript of March 25, 1993 at 19:21-25 ("we're
talking about hundreds of thousands of pages of government
documents" duplicated and provided at government expense).
Accepting Mr. Weinberger's and the government's argument
would make the provisions concerning government ownership
meaningless.
**4. The Protective Order's specification that the
government retains ownership also makes the statements
that Mr. Weinberger and the National Archives are
"negotiating a formal Agreement of Deposit" with respect
to the materials, see Weinberger Opp. at 10, difficult to
understand. Since he has no ownership rights with respect
to the NSC records, Mr. Weinberger has nothing to "convey"
in such an Agreement of Deposit. The only privilege
afforded Mr. Weinberger is access to the materials. Thus,
the only appropriate issue for an "Agreement" effecting
the NSC records would be an agreement on the procedures
for "reasonable accommodations" for access to the
materials. Defs' Exhibit A, 6 1.**
Third, contrary to the government and Mr.
Weinberger's arguments, nothing in the Protective Order
surrenders "control" over the records to Mr. Weinberger.
While Mr. Weinberger asserts that the records are subject
to his "exclusive control" and in the "control of private
parties," Weinberger Opp. at 15, none of the provisions of
the Protective Order transfers any control to the
defendant or defense counsel. The original Protective
Order and the March 26, 1993 amendment give the defendant
and counsel "access" -- and nothing more. See Defs'
Exhibit A, 6 1.
The government's claim that the records should not be
regarded as being in the National Archives' control because
they were transferred pursuant to a Court Order is also
unavailing. Defs' Opp. at 16. The CIPA procedures
contemplate that, at the end of the criminal proceedings,
the Court may order materials in the custody of the Court
Security Officer returned to "the department or agency
which originated them," or otherwise disposed based on
consultation with the agency. 18 U.S.C. App. ' 9,
Historical Note, ' 11. In this case, the Court's order is
based on the originating agencies' request that the
materials be sent to National Archives. Moreover, the
reason that the agencies requested that the material be
placed at the National Archives rather than the Library of
Congress was to protect the Executive Branch's control of
the classified information.
**5. See Defs' Exhibit E, Transcript of March 25, 1993 at
26:8-20 (Justice Department argues that transfer to the
Library of Congress "would unduly jeopardize the Executive
Branch's ability to protect classified information, that is
the function [of] the Executive Branch, and the
Constitution vests the responsibility in the Executive
Branch to protect classified information," and "the
agencies have made the determination" that the National
Archives, rather than the Library of Congress, is the
proper depository.** It is disingenuous for the Executive
Branch to assert that it has no control over the materials
because the Court granted agencies' request that they be
placed in the custody of the Executive Branch.
Finally, defendants' assertion that "the materials at
issue are lodged with the Executive Branch subject to
severe restrictions placed upon their disposition by the
Judicial Branch," is
erroneous. Defs' Opp. at 16. No such "severe restrictions"
exist. The March 26, 1993 Order provides that the National
Archives must "preserve" the materials for historical
purposes and provide "access" to Mr. Weinberger's
representatives. Defs' Exhibit B, 6 1. There are no other
restrictions on the Executive Branch's control in the
original Protective Order or March 26, 1993 Order. The
Court clearly has not sought to take control of the agency
records away from the Executive Branch.
In the context of the FOIA, the Supreme Court has
stated that "control" for the purpose of determining
whether materials are "agency records" means "that the
materials have come into the agency's possession in the
legitimate conduct of its official duties." United
States Dept. of Justice v. Tax Analysts, 492 U.S. 136,
145 (1989). The National Archives' principal official
duty is to accept records for historical preservation, 44
U.S.C. '' 2107- 2109, and its possession of the NSC
records at issue here, pursuant to Court order reflecting
the wishes of the Executive Branch, clearly satisfies the
standard for "control."
B. The Protective Order Is Not Intended To Prohibit The
Agency From Disclosing Records Otherwise Subject To
Disclosure Under The FOIA.
The government's and Mr. Weinberger's argument that
the existence of the Protective Order means that the
government is entitled to continue to withhold the NSC
records, even if they are not properly classified or
otherwise exempt under the FOIA, also fails because the
language of the Protective Order does not support their
claim. The test for relying on a court order to refuse to
process agency records under the FOIA is an exacting one.
The court order must enjoin the agency from disclosing the
materials. GTE Sylvania, Inc. v. Consumers' Union, 445
U.S. at 376-77. Moreover, the mere existence of a court
order restricting disclosure is not sufficient; the agency
must show that the "intended effect" of the order is to
prohibit it from disclosing the records. Morgan, 923 F.2d
at 197. Finally, the burden of showing that the intent of
the order is to prohibit agency disclosure is on the
agency. Id. at 198.
This test is clearly not satisfied here. First, the
Protective Order does not prohibit agency disclosure. The
agencies' authority and obligations with respect to
disclosure are defined by the laws concerning classified
information. The restraints in the Order are directed at
limiting the access granted by the Protective Order to the
defendant and his counsel, Defs' Exhibit B, Protective
Order 66 7, 8, and are not directed at controlling
disclosure within or by government agencies that created
and use the information or, in the case of the National
Archives, are responsible for its historical preservation.
Second, the intent of the Protective Order is not to
prohibit disclosure of materials otherwise subject to the
FOIA. In the case the government and Mr. Weinberger rely
upon, the court order at issue had been entered in a
"reverse-FOIA" action in which the court concluded that
disclosure was prohibited by provisions of the FOIA and
other laws. GTE Sylvania, Inc. v. Consumers' Union, 445
U.S. 378-79 & n.2. The Protective Order at issue here,
however, was entered solely to implement procedures under
the CIPA. The Order is not based on the FOIA, and there
was no discussion of FOIA issues -- much less "intent" to
adjudicate or alter the government's FOIA obligations.
Moreover, the defendants' and Mr. Weinberger's claim
that the Protective Order is intended to prohibit any
disclosure is contrary to the Order's mandate. As noted
above, the protective Order recognized that even the
materials "presumed" to be classified would be subject to
declassification. See supra at . The mandate that
National Archives preserve the materials for historical
purposes necessarily implies that those materials that are
declassified will be made accessible to historians and
researchers. See 36 C.F.R. '' 1254.44-46 (National Archives
procedures for determining whether records requested under
the FOIA are classified).
**6. The National Archives' assertion that this Court
should accept the declaration of the counsel of the
National Archives as a reliable interpretation of
"intent" of orders of this Court, see Defs' Opp. at 13-14
is absurd on its face. The sources of information used
to interpret court orders are well established, see
Morgan, 923 F.2d at 198, and they have never included the
out- of-court views of agency officials. Moreover, in
Morgan, the Court of Appeals stated that if an agency
concludes that the court order leaves some question
regarding its intent, the agency should seek
clarification from the court -- not seek to negotiate a
private "understanding" as the Archives says it is now
doing. See Defs' Exhibit F, Decl. of Gary Brooks, 6 6-
8.**
II. THE NSC ELECTRONIC MAIL RECORDS TRANSFERRED TO THE
NATIONAL ARCHIVES CONTAIN PRINTED RECORDS THAT ARE SUBJECT
TO PLAINTIFFS' FOIA REQUEST IN THIS ACTION AND THAT
DEFENDANTS ARE OBLIGATED TO RELEASE OR SHOW A BASIS FOR
WITHHOLDING IN A VAUGHN INDEX.
Because the printed NSC records at issue here are
agency records and their declassification and release is
not prohibited by the Protective Order, defendants are
obligated to process them under the FOIA. Their failure to
do so -- despite the fact that they already possess the
records in paper form -- only further delays the resolution
of this case.
Defendants attempt to mount an argument that the
materials at issue are "not within the scope of plaintiffs'
existing [FOIA] request" -- but even defendants admit that
such an argument is "beside the point," and acknowledge
that they are not opposing the motion on this basis. See
Defs' Opp. at 9 n.7. This is wise because the claim is
untenable. Defendants' rhetorical assertions that
plaintiffs' motion "expands this suit," or represents a
"new FOIA request," Defs' Opp. at 1, 2, are simply false.
Plaintiffs have not altered the terms of the FOIA request
that is pending before this Court in any way. The NSC
electronic mail records that have been transferred to the
National Archives include some of the very materials that
are described in the February 21, 1992 FOIA request that is
pending before this Court in Count I of this action. This
Motion does not "expand" the request or this lawsuit, but
seeks to prevent further delay in resolving the existing
request by compelling defendants to release or provide a
Vaughn index for all the paper records in their possession.
Defendants have no basis for refusing to process these
paper records other than the contrived interpretation of
the Protective Order in United States v. Weinberger
discussed above. Despite this Court's order that
defendants proceed with administrative processing of the
records subject to plaintiffs' request, defendants continue
to stall in releasing the records. Accordingly, we urge
the Court to promptly reject these claims and grant
plaintiffs motion so that resolution of the FOIA issues
with respect to the paper records in defendants' custody
can move forward.
CONCLUSION
Defendants should be required to process the PROFS
materials printed in response to the subpoena in United
States v. Weinberger and release or provide a Vaughn index
identifying the basis for withholding those records under
the FOIA.
Respectfully submitted,Michael E. Tankersley
(D.C. Bar No. 411978) Alan B. Morrison (D.C. Bar No. 073114)
Public Citizen Litigation Group 2000 P Street, N.W., Suite
700 Washington, D.C. 20036
(202) 833-3000
August 9, 1993 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________ )
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
)
)
v. )
C.A. No. 89-0142 CRR )
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
Defendants. )
_____________________________________________)
CERTIFICATE OF SERVICE
I hereby certify that on August 9, 1993, I caused
copies of Plaintiffs' Reply In Support of Motion to Compel
Production of Vaughn Index of Printed Copies of Records
Obtained By Defendants Pursuant To Subpoena in United
States v. Weinberger to be served upon counsel for the
defendants by hand delivery addressed to: Jason R. Baron
Peter Coffman Department of Justice Civil Division, Room
1040 901 E Street, N.W. Washington, D.C. 20530

Robert S. Bennett
Carl S. Rauh
SKADDEN, ARPS, SLATE, MEAGHER & FLOM 1440
New York Ave., N.W.
Washington, D.C. 20005-2107

Michael E. Tankersley



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ )
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
)
v. )
) C.A. No. 89-0142 CRR )
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
_____________________________________________)
PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF VAUGHN
INDEX OF PRINTED COPIES OF RECORDS OBTAINED BY
DEFENDANTS PURSUANT TO SUBPOENA IN UNITED STATES v.
WEINBERGER
Plaintiffs hereby move for an order compelling
defendants to release, or to justify their continued
withholding of, printed records of electronic mail
communications that are subject to plaintiffs' amended
Freedom of Information Act request. The records at
issue were printed at the National Security Council's
direction in December, 1992, in response to a subpoena
issued in United States v. Caspar Weinberger, Cr. Nos.
92-235, 92-418, and were transferred to the National
Archives for historical preservation by order of Judge
Hogan. Neither the NSC nor the National Archives,
however, has complied with their obligations to process
these records under the FOIA requests at issue in this
action. Accordingly, plaintiffs seek an order
directing defendants to process these records in
accordance with the FOIA by releasing records
responsive to plaintiffs' request, or by demonstrating
that the records are exempt from disclosure in
accordance with the procedures established in Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). August 9, 1993
The basis for this motion is set forth in the
accompanying Memorandum of Points and Authorities. A
proposed order is attached.
Respectfully submitted, Michael E. Tankersley
(D.C. Bar No. 411978) David C. Vladeck (D.C.
Bar No. 945063) Alan B. Morrison (D.C. Bar
No. 073114)
Public Citizen Litigation Group Suite 700
2000 P Street, N.W. Washington, D.C. 20036
(202) 833-3000
July __, 1993 Attorneys for Plaintiffs


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
__________________________________ )
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
v.
C.A. No. 89-0142 CRR )
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
_____________________________________________)
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO COMPEL PRODUCTION OF VAUGHN INDEX OF
PRINTED COPIES OF RECORDS OBTAINED BY DEFENDANTS PURSUANT
TO SUBPOENA IN UNITED STATES v. WEINBERGER
In response to plaintiffs' requests under the Freedom
of Information Act, 5 U.S.C. ' 552 ("FOIA"), defendants
have taken different positions with respect to records
that are solely in electronic format, and those electronic
records for which they possess both paper and electronic
copies. Defendants have refused to process any records in
electronic form on the basis of a series of arguments that
remain sub judice, including the assertion that it is
unduly burdensome to recover and print the records from
backup tapes.
**1. Defendants' Motion for Summary Judgment on
Plaintiffs' Amended FOIA Request (filed July 2, 1992)**
But those arguments are inapplicable where the
agencies already have printed copies of the records
recovered during previous use of the backup tapes.
Therefore, pursuant to this Court's orders, defendants have
processed paper copies of electronic records for release
subject to the exemptions enumerated in the FOIA.
**2. See Exhibit 10, Stipulation and Order Re: Schedule for
FOIA Processing of Previously Printed PROFS Materials
(filed Sept. 11, 1992); see also Defendant National
Security Council's Final Status Report Regarding FOIA
Processing of Previously Printed PROFS Materials (filed
July 12, 1993)**
This motion concerns a collection of paper records
recovered from the backup tapes that defendants are
refusing to process under the FOIA, despite the fact that
the records have already been converted from electronic to
paper form. As a result of a subpoena issued in United
States v. Weinberger, the NSC printed out thousands of
records from its backup tapes in December, 1992. A
substantial number of these records are subject to
plaintiffs' FOIA request. Nonetheless, the defendants have
not released any of the records under FOIA. Instead, the
NSC sought to have the records destroyed. Pursuant to an
order by Judge Hogan, however, the records have now been
transferred to the National Archives, which is also a
recipient of plaintiffs' FOIA request and a defendant in
this action. Because there is no legal basis for
defendants' failure to process these materials for release
in accordance with FOIA, plaintiffs move for an order
requiring defendants to release the records, or provide a
Vaughn index demonstrating that they are authorized to
withhold the records under some exemption to the FOIA.
Moreover, defendants failure to take any steps to
process these printed materials only delays final
resolution of this action and contravenes this Court's
directive that administrative processing of the FOIA claim
move forward with "with all deliberate speed." Order of
Jan. 6, 1993, at 2. Accordingly, plaintiffs urge the Court
to set a prompt deadline for defendants to fulfill their
obligations to either release, or demonstrate that an
exemption authorizes their continued refusal to release,
these records.
Records at Issue
The chronology below sets forth in detail the relevant
facts concerning plaintiffs' FOIA request and the records
printed in response to the subpoena in United States v.
Weinberger. In sum, this chronology establishes two facts
that are critical to plaintiffs' request for relief here:
(i) PROFS records that are subject to the FOIA requests at
issue in this action were converted to paper form when they
were recovered from the backup tapes and printed by the NSC
in December, 1992; and (ii) the printed copies of the
records, which were originally in the NSC's possession,
have now been transferred to the National Archives for
historical preservation.
On January 19, 1989, plaintiffs served three FOIA
requests for records from the defendants' PROFS system
addressed to the NSC, the Office of Administration, and the
National Archives. See Affidavit of Scott R. Armstrong
(filed Jan. 19, 1989). On February 21, 1992, plaintiffs
submitted a revised, narrowed FOIA request, which
defendants agreed to accept as a substitute for the three
January 19, 1989 requests. See Exhibits 8 and 9.
Defendants did not provide any response
to the revised FOIA request until July 2, 1992, when they
responded by asserting that they had no obligation under
the FOIA to process the requests with respect to any
records in their possession that are solely in electronic
format. The NSC, however, acknowledged that some
previously printed PROFS records were still in its
possession and began administrative processing of these
printed materials for release under FOIA.
**3. See Third Declaration of Steven D. Tilley 66 4-7
(Exhibit D in Appendix of Exhibits to Defendants' Motion in
Support of Summary Judgment on Plaintiffs' Amended FOIA
Request (July 2, 1992)). The printed materials still in
the NSC's possession consisted of: (1) some notes from the
notelogs of Oliver North; and (2) some documents printed-
out for the NSC and the Justice Department in 1990 and 1991
when the backup tapes were searched electronically to
print-out any documents containing certain keywords. These
documents represent only a fraction of the total number of
documents previously printed from the tapes because the NSC
did not retain copies of most of the materials printed
between 1986 and 1991. See Supplemental Responses of
Defendants NSC and WHCA to Interrogatories No. 35 and 36**
On December 3, 1992, the NSC ordered that additional
records be printed from the backup tapes in response to a
defense subpoena in United States v. Weinberger, Cr. Nos.
92-235, 92-416. In order to recover records responsive to
the subpoena, the NSC ordered the White House
Communications Agency ("WHCA") to electronically search the
backup tapes for communications containing key terms such
as "Arms Sales and Iran," and "Military Equipment and
Israel," much the same way that searches are performed on
Lexis or Westlaw. See Exhibit 1. The backup tapes
searched included the backup tapes that are specified in
plaintiffs' FOIA requests, i.e. NSC backup tapes from 1986
and February, 1987, that have been preserved pursuant to
orders in this litigation. See Exhibit 4. As a result of
the search, WHCA printed out copies of the 457 notelogs,
many of which are notelogs of individuals identified in
plaintiffs' FOIA requests.
**4. For example, plaintiffs' request calls for records on
the notelogs of Oliver North, John Poindexter, Robert
McFarlane, Paul Thompson and Robert Linhard. See Exhibit 9.
WHCA's index of notelogs printed out and delivered to the
NSC indicate that notelogs for all of these individuals
were printed and sent to the Defense SCIF. See Exhibit 2,
File Nos. 0068, 0109 (NSOLN -Oliver North); File Nos. 257,
289, 331 (NSJMP-John Poindexter); File Nos. 351 (NSRCM-
Robert McFarlane); File Nos. 251, 321, 360 (NSPBT-Paul
Thompson); File Nos. 0081, 119, 165, 280 (NSCREL-Robert
Linhard)**
In addition, WHCA printed 1046 documents or calendars of
various NSC personnel, some of which are undoubtedly among
the calendars and documents identified in plaintiffs' FOIA
request. See Exhibit 4.
WHCA delivered the printed PROFS materials to the NSC. See
Exhibit 2. On December 9-17, 1992, the NSC delivered the
printed PROFS notes, calendars and documents, and indices
of the printed materials, to the Defense Secure Classified
Information Facility ("Defense SCIF") established in the
Weinberger action pursuant to the Classified Information
Procedures Act. See Exhibit 3; 18 U.S.C. App. ' 3;
Protective Order entered in Cr. No. 92-235 (filed July 1,
1992) (providing that all presumptively classified
government documents obtained by the defense in discovery
be deposited with Defense SCIF). The NSC did not retain a
copy of the printed materials. Exhibit 7, at 2.
On December 24, 1992, President Bush
issued a pardon to Caspar Weinberger, which resulted in
termination of the criminal proceedings. The procedures
under the Classified Information Procedures Act provide
that, upon the conclusion of the criminal proceedings,
the materials in the Defense SCIF are to be transmitted
to the Department of Justice to be disposed of in
consultation with the agency from which the documents
were obtained including, if desired, return of the
documents to the originating agency.
**5. See 18 U.S.C. App. ' 9, Historical Note, Security
Procedures ' 11:
Final Disposition. Within a reasonable time after all
proceedings in the case have been concluded, including
appeals, the court shall release to the court security
officer all materials containing classified information.
The court security officer shall then transmit them to the
Department of Justice Security Officer who shall consult
with the originating agency to determine the appropriate
disposition of such materials. Upon the motion of the
government, the court may order the return of the
classified documents and materials to the department or
agency which originated them. . . **
At the conclusion of the Weinberger case, the
government indicated that it intended to have all of the
materials in the Defense SCIF destroyed, without returning
them to the agencies. **6. The materials stored in the
Defense SCIF included: (i) the printed NSC PROFS notes,
documents and calendars at issue here; (ii) other NSC, CIA,
National Security Agency, Department of State and
Department of Defense documents obtained by the defense in
discovery; and (iii) defense counsels' notes and other
work-product containing information taken from
presumptively classified documents in the SCIF. **
The government's plans were forestalled because Mr.
Weinberger sought to maintain access to the records in
order to respond to further reports and inquiries
concerning the charges against him. The Library of
Congress agreed that, because of their historical value, it
was willing to preserve the documents as part of its
manuscript collection. Accordingly, Mr. Weinberger
requested that Judge Hogan order that the materials be
transferred to the Library of Congress for historical
preservation under conditions that would assure that the
defense would continue to have access to the materials.
**7. See United States v. Weinberger, Cr. Nos. 92-235, 92-
418, Motion to Modify Protective Order, Cr. Nos. 92-235,
92-418 (filed Feb. 2, 1993)**
The government, in a motion filed on behalf of the NSC,
continued to take the position that the materials should be
destroyed. As an accommodation, however, the government
agreed to preserve documents selected by Mr. Weinberger at
the National Archives, rather than at the Library of
Congress.
**8. See United States v. Weinberger, Cr. Nos. 92-235, 92-
418, Department of Justice's Memorandum in Opposition to
Defendants' Motion to Modify Protective Order (filed Feb.
26, 1993). The Department of Justice's memorandum was
filed on behalf of the NSC and other agencies. See id. at 1
n.1. **
In its written motion and oral argument before Judge Hogan,
the NSC made no mention of the fact that the PROFS
materials deposited in the Defense SCIF were taken from
backup tapes that this Court had just ruled contain
"records" that must be managed in accordance with the
Federal Records Act. See Armstrong v. Bush, 810 F. Supp.
335 (1993). Nor did the NSC acknowledge that some of the
printed materials were the subject to plaintiffs'
outstanding FOIA request. This was done even though some
of the same counsel from the Civil Division of the Justice
Department representing the NSC in this case also
represented the NSC in the proceedings concerning
disposition of the Defense SCIF records. See Justice
Department Memorandum, supra note 8.
On March 26, 1993, Judge Hogan decided that all the
materials in the Defense SCIF should be preserved for
historical purposes, as Mr. Weinberger urged -- but
concluded that the preservation should be done by the
National Archives, as the government had urged.
Accordingly, the court ordered that the materials be
transferred to the National Archives for historical
preservation. See Exhibit 6.
In this litigation, the NSC waited until March 9,
1993, to amend its discovery responses to acknowledge that
it had printed-out copies of PROFS notes, calendars and
documents in December 1992 in response to the Weinberger
subpoena. See Exhibit 7. The NSC's amended response
reported that the NSC did not retain copies of any of the
printed PROFS records, but made no mention of the pending
proceedings before Judge Hogan concerning disposition of
the materials. Id. at 2. Nor did defendants inform this
Court or the plaintiffs of Judge Hogan's March 26, 1993
order that the Weinberger materials be transferred to the
Archives. In April, 1993, plaintiffs brought the NSC's
actions to the Court's attention and urged that the NSC
should have retained and processed copies of the printed
materials to be processed under the FOIA.
**9. See Plaintiffs' Supplemental Statement in Opposition
to Defendants' July 2, 1992 Motion for Summary Judgment on
Plaintiffs' Amended FOIA Request at 3-4 (filed April 28,
1993)**
Defendants never disclosed to plaintiffs or to the Court
that the printed records are now in the custody of the
Archives.
ARGUMENT
THE PROFS MATERIALS
PRINTED BY THE NSC IN CONNECTION WITH THE UNITED
STATES V. WEINBERGER PROCEEDING ARE AGENCY RECORDS THAT
DEFENDANTS ARE OBLIGATED TO PROCESS UNDER FOIA.
Plaintiffs' request for relief with respect to the
printed records at issue here is straightforward. First,
these printed records -- like the printed copies of PROFS
materials that defendants have processed under this
Court's prior orders -- are agency records that
defendants are obligated to process under the FOIA.
Defendants' arguments that the FOIA does not apply to
records stored solely on the backup tapes (which
plaintiffs' maintain are meritless) simply do not apply
to these records that have been printed from the tapes,
and provide no basis for continuing to delay release of
these printed records.
Second, by refusing to process the records, defendants are
"improperly withholding" them in violation of FOIA, and
delaying resolution of this action. Defendants have a duty
to either release the records or demonstrate that they are
subject to a specific FOIA exemption documented in a Vaughn
index.
A. The Records Are Agency Records. Defendants have
acknowledged that, notwithstanding their arguments
concerning the application of the FOIA to electronic
records, PROFS materials that have been printed by the NSC
from the backup tapes in the course of various proceedings
are agency records that must be released under the FOIA
unless they are covered by one of FOIA's enumerated
exemptions. The records at issue here are no different.
These records were created by agency personnel in
electronic form on the NSC's computer system, were stored
by the NSC on backup tapes, and then were obtained by the
NSC in paper form when they were printed in December, 1992.
Consequently, the records were both created and obtained by
an agency in the course of its duties.
There are only two differences between these records
and the other records printed from the backup tapes that
defendants have been ordered to process under the FOIA: (i)
the Weinberger subpoena records were transferred to the
National Archives; and (ii) the records were printed while
the amended FOIA request was pending. Prior decisions of
the Court of Appeals, particularly McGehee v. Central
Intelligence Agency, 697 F.2d 1095, 1109 modified on
rehear'g, 711 F.2d 1076 (D.C. Cir. 1983), have established
that agencies cannot rely on either factor to evade their
obligations to process records under the FOIA.
First, the law makes clear that records transferred
from one agency to another are still agency records that
must be processed for release under FOIA. McGehee, 697
F.2d at 1109. Otherwise, "an agency seeking to shield
documents from the public could transfer the documents for
safekeeping to another government department," and then
both agencies could decline to release the records and
wholly "frustrate the purposes of the Act." 697 F.2d at
1109. In other words, the FOIA does not permit agencies to
play a shell game in which transfer of records among
different agencies is used as an excuse to avoid
disclosure. Thus, the transfer of the Weinberger materials
from the possession of the agency that created them (the
NSC) to the National Archives does not alter the fact that
they are "agency records" under the FOIA. Indeed, it does
not matter whether the records are deemed to be in the
control of the agency that created them, the NSC, or have
been transferred to the control of the National Archives.
Both agencies are subject to plaintiffs' revised FOIA
request, and both are defendants in this action.
**10. Regardless of whether the records are considered to
be under the "control" of the NSC or the National Archives,
both defendants must act to ensure that they are promptly
processed since the National Archives has possession of the
records under Judge Hogan's order, and the NSC is
responsible for determining which of the "presumptively"
classified records are, in fact, properly classified. See
36 C.F.R. ' 1254.42 (a); 32 C.F.R. ' 2101.41**
Second, unlike the other printed records, the
Weinberger records were converted from electronic to
printed form after defendants received plaintiffs' revised
FOIA request in February, 1992. This should not excuse
defendants of their obligations under the FOIA since the
records -- which were created in 1986 and 1987 -- have
always been in defendants' possession and were merely
copied from magnetic tape to paper in December, 1992.
Moreover, in McGehee, the Court of Appeals made clear that
agencies generally cannot limit their response to a pending
FOIA request to documents in their possession at the time a
request was received. See 697 F.2d at 1100-05. Documents
that come into an agencies' possession while a request is
pending must be released in response to the pending request
unless the agency can demonstrate a justification for
restricting its response, and the agency has adopted
regulations or other notice that it has adopted a "cut-off"
date for its searches. Id. The National Archives has no
regulations that would justify such a practice here.
Consequently, defendants' obligation to promptly release
agency records applies with full force to the printed PROFS
materials that have been transferred to the National
Archives while plaintiffs' request has remained pending.
B. Defendants Are Improperly Withholding The Records.
The FOIA mandates that agencies "shall make records
promptly available," the agency can demonstrate that the
records fall within one of the enumerated exemptions. 5
U.S.C. ' 552(a)(3), (b); United States Dept. of Justice v.
Tax Analysts, 492 U.S. 136, 150-51 (1989). Defendants have
failed to do so and must be ordered to fulfill their
obligation to either (i) produce the documents or (ii)
produce a Vaughn index demonstrating one of the statutory
exemptions authorizes continuing to withhold the records.
Indeed, defendants' conduct with respect to these
materials suggests a deliberate effort to avoid their
obligations under the FOIA. First, although defendants
have argued to this Court that the burden of printing
materials from the backup tapes justifies their refusal
to search for electronic materials under the FOIA, the
NSC made no effort to retain copies of the materials
when they were printed in December, 1992. Second, the
NSC was entitled to seek return of these paper records
when the criminal proceedings were concluded but,
instead, urged that they should be destroyed. **11. See
United States v. Weinberger, Cr. Nos. 92-235, 92-418,
Transcript of Hearing, March 25, 1993, at 26:24-27:5
(stating that the government's position is that the
materials should be destroyed)**
Finally, neither the NSC nor the National Archives have
been forthcoming regarding the existence or custody of
these materials. The NSC did not disclose that the records
had been printed out until months after it transferred
them, and defendants made no effort to disclose that Judge
Hogan had directed that they be transferred to the National
Archives for historical preservation.
This conduct demonstrates serious disrespect for the
mandate of FOIA and this Court's directive that processing
of the FOIA request move forward without further delay.
Adjudication of the issues concerning the paper records at
issue cannot be completed until defendants have released
or provided a Vaughn index for these materials.
Processing of these materials should have started seven
months ago when they were first printed, and defendants
failure to do so has only prolonged resolution of this
suit. Accordingly, defendants must be required to promptly
begin administrative processing of the materials in
accordance with the FOIA.
CONCLUSION
Defendants should be required to process the
PROFS materials printed in response to the subpoena in
United States v. Weinberger for release in response to
plaintiffs' FOIA request as provided in the attached
proposed order.
Respectfully submitted, Michael E. Tankersley (D.C.
Bar No. 411978) David C. Vladeck (D.C. Bar No. 945063)
Alan B. Morrison (D.C. Bar No. 073114) Public Citizen
Litigation Group 2000 P Street, N.W., Suite 700 Washington,
D.C. 20036 (202) 833-3000
July 1993 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
___________________________________
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
)
v. )
C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
_____________________________________________)
ORDER
Upon consideration of plaintiff's Motion to
Compel Production of Vaughn Index of Printed Copies of
Records Obtained By Defendants Pursuant To Subpoena in
United States v. Weinberger, defendants' opposition
thereto, and the entire record in this case, it is this ___
day of ____________, 1993,
ORDERED that plaintiffs' motion is granted; and
it is further
ORDERED that, within thirty days of the date of
this Order, the defendants shall (i) search the materials
printed from the backup tapes of the NSC's PROFS system in
response to the subpoena issued in United States v.
Weinberger, Cr. Nos. 92-235, 92-418, for materials
responsive to plaintiffs' revised FOIA request, and (ii)
shall release or provide a detailed justification for
withholding each record or portion thereof in accordance
with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974).

____________________________
CHARLES R. RICHEY,
UNITED STATES DISTRICT JUDGE


Copies to: Michael E. Tankersley Kate Martin
David C. Vladeck American
Civil Liberties
Alan B. Morrison Union
Foundation
Public Citizen Litigation 122 Maryland
Ave., N.E. Group, Suite 700 Washington,
D.C. 20002

2000 P Street, N.W. Washington, D.C. 20036
Jason R. Baron Peter D. Coffman
Department of Justice Civil Division, Room
1040 901 E Street, N.W. Washington, D.C.
20530


UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
___________________________________

SCOTT ARMSTRONG, et al., )
Plaintiffs, )
)
v.
C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
_____________________________________________)
CERTIFICATE OF SERVICE
I hereby certify that on July __, 1993, I
caused copies of Plaintiffs' Motion to Compel Production
of Vaughn Index of Printed Copies of Records Obtained By
Defendants Pursuant To Subpoena in United States v.
Weinberger to be served upon counsel for the defendants
by hand delivery addressed to:Jason R. Baron
Peter Coffman Department of Justice Civil Division, Room
1040 901 E Street, N.W. Washington, D.C. 20530
_______________________ Michael E. Tankersley
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
__________________________________
SCOTT ARMSTRONG, et al., )
Plaintiffs, )
C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
___________________________________________)
EXHIBITS SUBMITTED IN SUPPORT OF PLAINTIFFS' MOTION TO
COMPEL PRODUCTION OF VAUGHN INDEX OF PRINTED COPIES OF
RECORDS OBTAINED BY DEFENDANTS PURSUANT TO SUBPOENA IN
UNITED STATES v. WEINBERGER

1. Memorandum From the Executive Secretary of the NSC
to the Commander of the White House Communications
Agency, requesting copies of PROFS Materials In
Response To Subpoena In United States v. Weinberger.
2. Classified Document Accountability Records,
Dec. 7-14, 1992.
3. Transmittal Letters from Deputy Legal
Adviser, NSC to Roberto Iraola, Defense S.C.I.F., Dec.
9-17, 1992.
4. Search Totals For NSC Printed Materials.
5. Time Schedule for Weinberger Searches and
Iran-Contra Tape Copy.
6. United States v. Weinberger, Cr. Nos. 92-235, 92-418,
Order of March 26, 1993.
7. Second Supplemental Response of the NSC and
WHCA to Interrogatories Nos. 35 and 36 (March 9, 1993).
8. Stipulation and Order Re: Freedom of
Information Act Request (Feb. 21, 1992).
9. Plaintiffs' Amended Freedom of Information
Act Request (Feb. 21 and June 15, 1992).
10. Stipulation and Order Re: Schedule for FOIA
Processing of Previously Printed PROFS Materials (Sept. 11, 1992).

Court Decision Judge Charles Richey


Scott ARMSTRONG, et al., Plaintiffs,
v.
EXECUTIVE OFFICE OF the PRESIDENT, et al., Defendants.
Civ. A. No. 89-142 (CRR).
United States District Court,
District of Columbia.
Sept. 3, 1993.
Counsel for Plaintiffs: Michael E. Tankersley, Public
Citizen Litigation Group, with David C. Vladeck, Public
Citizen Litigation Group, Washington, DC, were on the
briefs, .
Counsel for Defendants David J. Anderson, Atty., U.S.
Dept. of Justice, Civ. Div., Washington, DC, with whom
Stuart E. Schiffer, Acting Asst. Atty. Gen., J. Ramsey
Johnson, U.S. Atty., D.D.C. and Elizabeth A. Pugh, Jason R.
Baron, Anthony J. Coppolino, Peter D. Coffman, and Pamela
A. Moreau, Attys., U.S. Dept. of Justice, Civ. Div., were
on the briefs.
OPINION

CHARLES R. RICHEY, District Judge.
*1 Before the Court is the Plaintiffs' Motion to
Compel the production of a Vaughn index for materials
located with the Defendant Archivist pursuant to a
Protective Order entered in United States v. Weinberger.
Caspar Weinberger has filed a Motion to Intervene for the
purpose of opposing the Plaintiffs' Motion, which the Court
shall grant as unopposed. [Footnote 1]
After careful consideration of the Motion to Compel,
all the papers filed by the parties, the underlying law,
and the entire record in this action, the Court shall grant
the Plaintiffs' Motion to Compel and shall order the
Defendants to produce a Vaughn index for these materials.
I. BACKGROUND
The Plaintiffs brought this suit against the Executive
Office of the President, the National Security Council, and
the Archivist of the United States, inter alia, under the
Federal Records Act ("FRA"), 44 U.S.C. ss 2101-2118,
2901-2910, 3101-3107, and 3301-3324, the Administrative
Procedures Act ("APA"), 5 U.S.C. s 701 et seq., and the
Freedom of Information Act ("FOIA"). 5 U.S.C. s 552. The
Plaintiffs' request for relief was twofold. First, they
requested that the Defendant agencies' record keeping
guidance for the management of electronic records, such as
e-mail, be declared invalid because the guidelines
permitted the destruction of records contrary to the FRA.
Second, the Plaintiffs requested disclosure under FOIA of
various materials preserved on the Defendants' electronic
communication systems.
In an Opinion dated January 6, 1993, the Court granted
the Plaintiffs summary judgment as to their FRA claim and
ordered the Defendants to promulgate new guidelines for the
management of electronic federal records. Armstrong v.
Executive Office of the President, 810 F.Supp. 335
(D.D.C.1993). The Court of Appeals for the District of
Columbia Circuit affirmed that decision and remanded the
case to this Court on a variety of issues. See Armstrong
v. Executive Office of the President, --- F.2d
Still pending before the Court is the Plaintiffs' FOIA
request contained in Count I of their Complaint. Many of
the electronic materials originally requested by the
Plaintiffs have subsequently been printed out in paper
form. As the Defendants in the past have taken a different
position with respect to records that are solely in
electronic format ("electronic records") and those also
printed out in paper form ("paper records"), [Footnote 2]
the Court has attempted to resolve the outstanding FOIA
claim by dealing with the Plaintiffs' FOIA requests for
paper and electronic records separately. In an effort to
resolve the Plaintiffs' FOIA claim as to paper materials,
the Court recently granted the Plaintiffs' Motion to Compel
completion of the Vaughn index as to all of these paper
materials and set a schedule for the filing of dispositive
motions as to these paper records. Armstrong v. Executive
Office of the President, --- F.Supp. ---- No.
89-142 (D.D.C. July 19, 1993) (order granting Plaintiffs'
Motion to Compel a Vaughn index for paper materials).
II. THE PLAINTIFFS' MOTION TO COMPEL
*2 The Plaintiffs' latest Motion requests that the
Defendants be compelled to prepare a Vaughn index pursuant
to FOIA for materials obtained by Caspar Weinberger in the
criminal case United States v. Weinberger, Cr. Nos. 92-235
and 92-416. 1992 [Footnote 3] In response to a subpoena
issued in the Weinberger case, the White House
Communications Agency performed a "keyword" search of a
subset of the computer tapes which had been preserved by
Order of this Court in the Armstrong litigation. The
search yielded 457 notelogs and 1,046 other documents. See
Plaintiffs' Motion to Compel at 4-5. These materials were
then printed out in "hard," or paper, copy and turned over
to Mr. Weinberger to assist in his defense in the criminal
action. Due to the classified nature of the materials,
they were released to Mr. Weinberger by the Government
subject to a Protective Order pursuant to the Classified
Information Procedures Act, 18 U.S.C.App. IV. s 3. See
Protective Order, Exhibit B, Defendants' Opposition. The
Protective Order was later modified in that the materials
were moved to the Archives. Modification of Protective
Order, Exhibit A, Defendants' Opposition. [Footnote 4]
These materials were originally kept at a "sensitive
compartmentalized information facility accredited for the
storage, handling and control of classified information."
Id. at 2.
In their Motion, the Plaintiffs contend that the
materials printed in paper format pursuant to the subpoena
in Weinberger include materials that they have requested
under FOIA. [Footnote 5] The Plaintiffs claim that because
this material has now been printed out in paper format and
is now in the custody of the Archivist, the Defendants is
obligated to prepare a Vaughn index of this material so
that the Plaintiffs' FOIA claim for paper records can be
resolved in its entirety. The Court agrees.
III. THE WEINBERGER MATERIALS HERE ARE SUBJECT TO FOIA
BECAUSE THEY ARE RECORDS IN THE POSSESSION OF A GOVERNMENT
AGENCY AND BECAUSE THE PROTECTIVE ORDER ISSUED BY JUDGE
HOGAN IN THE WEINBERGER CRIMINAL CASE DOES NOT EXEMPT THE
WEINBERGER MATERIALS FROM DISCLOSURE UNDER FOIA.
A. The Weinberger materials are agency records in the
possession of the Government and therefore are subject to
FOIA.
[1] It is undisputed that the Weinberger materials at
issue here were printed out by the Government from the
computer tapes in question in this litigation. Therefore,
it is clear that these materials include records created by
the Government agencies sued as Defendants in this
litigation and that these records may be responsive to the
Plaintiffs' FOIA request. In addition, it is undisputed
that the Weinberger materials are currently in the custody
of the Archivist, which is a Government agency and a
Defendant in this litigation. Accordingly, the Court
concludes that these materials are subject to FOIA because
they were created by a Government agency and are under the
control of a Government agency at the time of the FOIA
request. Department of Justice v. Tax Analysts, 492 U.S.
136, 144-55, 109 S.Ct. 2841, 2847-53, 106 L.Ed.2d 112
(1989). The fact that these records were originally in the
possession of the National Security Council before and are
now in the custody of the Archivist does not prevent them
from being subject to FOIA. See McGehee v. CIA, 697 F.2d
1095, 1109, modified on reh'g, 711 F.2d 1076 (D.C.Cir.1983)
(the mere transfer of records from one agency to another
does not exempt records from FOIA).
B. The Protective Order issued by Judge Hogan in the
Weinberger case does not exempt them from disclosure under
FOIA.
*3 [2] The Defendants and Mr. Weinberger contend that
disclosure of this material under FOIA is barred by a
Protective Order entered by Judge Hogan in Weinberger.
Morgan v. Department of Justice, 923 F.2d 195, 197
(D.C.Cir.1991) (a court order sealing records supersedes an
agency's obligation to disclose records under FOIA where
the order was issued with the intent to prohibit
disclosure); see GTE Sylvania, Inc. v. Consumers Union,
445 U.S. 375, 386-87, 100 S.Ct. 1194, 1201-02, 63 L.Ed.2d
467 (1980). They contend that the Protective Order, by its
terms, bars disclosure of this material to anyone other
than Mr. Weinberger or his designee. Furthermore, Mr.
Weinberger maintains that, under the terms of the
Protective Order, these materials are within his control,
not the Government's, and therefore these records are not
subject to FOIA.
However, the Government and Mr. Weinberger's reliance
on the Protective Order is misplaced. Our Court of Appeals
in Morgan stated that, in deciding whether a court order
prevents an agency from disclosing records under FOIA, the
question is whether the court order at issue intended to
prohibit the agency from disclosing the records. Morgan,
923 F.2d at 197. Furthermore, the agency must demonstrate
that the order prohibits it from disclosing the records.
Id. The Court concludes that the Government has not shown
that the Protective Order in the Weinberger case prohibits
disclosure of the material at issue here for several
reasons.
First, the plain language of the Protective Order here
does not prohibit disclosure of these materials under FOIA.
The plain language of the Protective Order directs that the
materials be "preserved at the National Archives for
historical purposes." Modification of Protective Order, P
1, Exhibit A, Defendants' Opposition. It also states that
the Weinberger information "is now and will remain the
property of the Government." Protective Order, P 11,
Exhibit B, Defendants' Opposition. Giving plain meaning to
this language, the Court concludes that the information
here is the property of the Government and that it was
intended for historical preservation.
Furthermore, the Court notes that the Protective Order
provides that "any document received by defendant in
discovery from any United States Government agency or
entity shall be presumed to contain classified information
until otherwise determined by the appropriate agency or
entity." Id. P 2a. Therefore, instead of being barred from
releasing this material, the Government was given the
responsibility of deciding whether this information should
remain classified.
[3] Second, the clear purpose of the Protective Order
does not prevent disclosure of this material under FOIA.
The Protective Order in Weinberger was issued pursuant to
the Classified Information Procedures Act ("CIPA"), whose
purpose was to harmonize a criminal defendant's right to
exculpatory material with the Government's right to protect
classified information. 18 U.S.C. App. IV s 3 (the court
shall issue an order to protect against the disclosure of
any classified information disclosed by the United states
to any defendant); see United States v. Wilson, 571
F.Supp. 1422 (S.D.N.Y.1983).
*4 [4] Furthermore, the CIPA does not limit an
agency's decision making power as to the fate of classified
materials disclosed to a defendant under the CIPA. 18
U.S.C.App. IV s 9, Historical Note 11) (After criminal
proceedings are concluded, the originating agency shall
determine the final disposition of classified materials
under the CIPA). Therefore, it is clear that the
Protective Order here was designed to give Mr. Weinberger
every opportunity to defend himself in the criminal case
before judge Hogan while, at the same time, protecting the
Government's right to keep these materials classified.
However, it is also clear that the Protective Order was not
intended to act as an limitation on the Government's
ability to determine the final disposition of these
classified materials. The Protective Order states that
these materials may be subject to later disclosure and in
no way limits the access of any party to this material
under FOIA. Our Court of Appeals has made clear that a
limitation on the method of access to certain records is
not synonymous with a prohibition on their future releases.
See Morgan, 923 F.2d at 197. This is especially true
where, as here, the Protective Order by its terms leaves
future decisions as to the classified nature of the
material to the appropriate Government agency. [Footnote 6]
The only materials clearly intended to be exempt from
FOIA include trial materials prepared by defense counsel
for Mr. Weinberger. However, the Court notes that the
Plaintiffs did not request this material. They simply ask
the Government to search the Weinberger materials for
documents responsive to their FOIA request and to prepare a
Vaughn index of those materials that are responsive to the
request but which the Government will not release.
[Footnote 7]
C. The fact that these records were printed out in
paper form while the Plaintiffs' FOIA request was pending
does not relieve the Government of its obligation to
process these records under FOIA.
[5] The Defendants argue that the plaintiffs are
beyond the bounds of FOIA in demanding paper records that
were converted from electronic to printed form in December,
1992, where plaintiffs had submitted their revised FOIA
request in February, 1992. The Defendants contend that a
broad application of FOIA requests would require the
perpetual updating of these requests.
[6] The Court does not agree. When conducting a
search for responsive documents under FOIA, an "agency
bears the burden of establishing that any limitations on
the search it undertakes in a particular case comport with
its obligation to conduct a reasonably thorough
investigation." McGehee v. Central Intelligence Agency,
697 F.2d 1095, 1101 (D.C.Cir.1983) (standard of
reasonableness governs the adequacy of an agency's response
to a FOIA request). In this case, the Court concludes that
the Government has failed to meet its burden of
reasonableness, and therefore, the Court shall not shield
this material from FOIA. Id. at 1100. The Defendants here
have not advanced sufficient factual support to justify why
it is reasonable to exclude the material in question from
FOIA. Given that the Plaintiffs' FOIA claim in this case
remains sub judice, the Court does not believe that the
Plaintiffs' request for a Vaughn index of the Weinberger
materials is untimely. In addition, the Court believes
that such a request is reasonable because these documents
are easily accessible, having been printed months ago, and
because the request here is discrete and limited in scope.
IV. CONCLUSION
*5 The Court concludes that the materials printed out
in hard copy pursuant to subpoena in United States v.
Weinberger are subject to the FOIA. Accordingly, the Court
shall grant the Plaintiffs' Motion to Compel production of
a Vaughn index for these materials. Nothing in the
foregoing shall preclude the Defendants from asserting any
of the Exemptions under FOIA in connection with the
Weinberger materials. The Court merely holds that these
materials are within the jurisdiction of the Court and are
subject to the provisions of FOIA.
The Court shall issue an Order of even date herewith
consistent with the foregoing Opinion.
ORDER
Before the Court is the Plaintiffs' Motion to Compel
the production of a Vaughn index for materials located with
the Defendant Archivist pursuant to a Protective Order
entered in United States v. Weinberger and Caspar
Weinberger's Motion to Intervene for the purpose of
opposing the Plaintiffs' Motion.
After careful consideration of the Motions, all the
papers filed by the parties, the underlying law, and the
entire record in this action, and for the reasons
articulated in the Court's Opinion of even date herein, it
is, by the Court, this 3rd day of September, 1993,
ORDERED that Caspar Weinberger's Motion to Intervene
shall be and hereby is GRANTED as unopposed; and it is
FURTHER ORDERED that the Plaintiffs' Motion to Compel
production of a Vaughn index of printed copies of records
obtained by the Defendants pursuant to subpoena in United
States v. Weinberger shall be, and hereby is, GRANTED; and
it is
FURTHER ORDERED that the Defendants shall search the
material printed out pursuant to subpoena in United States
v. Weinberger for documents responsive to the Plaintiffs'
pending FOIA request; and it is
FURTHER ORDERED that the defendants shall prepare a
Vaughn index of the Weinberger materials and shall file
same with the Court on or before 4 p.m. on October 8, 1993;
and it is
FURTHER ORDERED that the parties in the
above-captioned case shall appear before the Court at 3:00
p.m. on September 8, 1993, for a status conference. At that
time, they should be prepared to discuss how best to
resolve all of the pending matters in this litigation and
to propose a schedule for the early resolution of same.
DEFENDANT'S EXHIBIT B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America
v.
Caspar W. Weinberger, Defendant.
Criminal No. 92-0235-TFH
PROTECTIVE ORDER
The Court, having considered the motion of the United
States for a protective order, and all other papers and
proceedings related thereto:
It is hereby ORDERED that, pursuant to Section 3 of
the Classified Information Procedures Act ("CIPA"), 18
U.S.C.App. IV s 3, the following Protective Order is
entered:
1. The Court finds that this case will involve
information that has been classified in the interest of
national security. The storage, handling and control of
this information will require special security precautions.
The purpose of this Order is to establish procedures that
must be followed by counsel and the parties in this case.
These procedures will apply to all pretrial matters
concerning this case and may be modified from time to time
by further order of the Court acting under its inherent
supervisory authority to ensure a fair and expeditious
trial.
*6 2. Definitions. The following definitions shall
apply to this Order: a. "Classified information" shall
mean: i) any document or information that has been
classified by any executive agency in the interests of
national security or pursuant to Executive Order 12356 as
"confidential," "secret," "top secret" or "sensitive
compartmented information"; or ii) any document or
information now or formerly in the possession of a private
party that (A) has been derived from information from the
United States Government that was classified and (B) has
subsequently been classified by the Government pursuant to
Executive Order 12356 as "confidential," "secret," "top
secret" or "sensitive compartmented information;" provided,
however, that any document received by defendant in
discovery from any United States Government agency or
entity shall be presumed to contain classified information
until otherwise determined by the appropriate agency or
entity. b. "Document" shall mean any material containing
information. The term "document" shall include, without
limitation, letters, reports, summaries, memoranda, notes,
communications, telexes, cables, telecopies, reports,
photographs, charts, graphs, maps, invoices, accountings,
worksheets and messages. The term "document" also shall
include, without limitation, all recordings of information
on magnetic, electronic or optical media such as audio or
video tapes, computer tapes or disks, films and all manner
of electronic data processing storage. c. "Access to
classified information" means having access to, reviewing,
reading, learning or otherwise coming to know in any manner
any classified information. d. "SCIF" shall mean a
sensitive compartmented information facility accredited for
the storage, handling and control of classified
information.
3. Christine Gunning shall be the Court Security
Officer. The alternate Court Security Officers shall be
James Londergan, Michael Macisso, Barbara Russell, Joan
Kendrall, and Charles Alliman.
4. The Court Security Officer shall arrange for the
creation, construction, maintenance and operation of a SCIF
at 1025 Connecticut Avenue, N.W., Washington, D.C. for the
use of the defendant, counsel for the defendant and
employees of counsel for the defendant and authorized
witnesses, including their counsel, accompanied by counsel
for the defendant twenty-four hours daily every day of the
year, including weekends and holidays. The SCIF shall
contain separate working areas for the counsel for the
defendant and will be outfitted with any secure office
equipment requested by the defendant that is reasonable and
necessary to the preparation of his defense. The Court
Security Officer, in consultation with counsel for the
defendant, shall establish procedures to assure that the
SCIF may be maintained and operated in the most efficient
manner consistent with the protection of classified
information. Finally, pending the availability of
defendant's SCIF, defendant, counsel for the defendant,
employees of counsel for the defendant, and authorized
witnesses, including their counsel, accompanied by counsel
for the defendant shall have access twenty-four hours
daily to the Independent Counsel's SCIF, to the extent
space is available, for appropriate examination and use of
any classified materials provided through discovery by the
Government, subject to the general provisions of this
Order.
*7 5. Filing of Papers By Defendant. Any pleading or
other document filed by defendant shall be filed under seal
with the Court through the Court Security Officer. The
Court Security Officer shall promptly examine the pleading
or document and, in consultation with representatives of
the appropriate agencies, determine whether the pleading or
document contains classified information. If the Court
Security Officer determines that the pleading or document
contains classified information, he or she shall ensure
that portion of the document, and only that portion, is
marked with the appropriate classification marking and
remains under seal. All portions of all papers filed by
defendant that do not contain classified information shall
be immediately unsealed by the Court Security Officer and
placed in the public record. The Court Security Officer
shall immediately deliver under seal to the Court and the
Office of Independent Counsel any pleading or document to
be filed by defendant that contains classified information;
the Court shall then direct the Clerk to enter on the
docket sheet the title of the pleading or document, the
date it was filed, and the fact that it has been filed
under seal with the Court Security Officer.
6. Filing of Papers By The Government. Only the
portions of pleadings or documents filed by the Government
containing classified information shall be filed under seal
with the Court through the Court Security Officer.
7. Protection Of Classified Information. The Court
finds that, in order to protect the classified information
involved in this case, no person except defendant, counsel
for defendant, employees of counsel for defendant, or any
potential witnesses or their counsel, shall have access to
the classified information involved in this case. No
counsel for defendant, employee of counsel for defendant,
or defense witness shall have access to any classified
information in this case unless that person shall first
have: a. received an approval for access to classified
information from the Court or any of the Court Security
Officers designated under P 3 of this Order; and b. signed
the Memorandum of Understanding in the form attached hereto
agreeing to comply with the terms of this Order.
8. Access To Classified Information. The defendant,
counsel for the defendant, employees of counsel for the
defendant, and any potential witnesses and their counsel
shall have access to classified information only as
follows: a. All classified information produced by the
Government to the defendant in discovery or otherwise, and
all classified information possessed, created or maintained
by the defendant, shall be stored, maintained and used only
in the SCIF. b. The defendant, counsel for the defendant,
and employees of counsel for the defendant shall have free
access to the classified information made available to them
in the SCIF and shall be allowed to take notes and prepare
documents with respect to those materials. *8 c. No
person, including the defendant, counsel for the defendant,
employees of counsel for the defendant, or any potential
witnesses and their counsel shall copy or reproduce any
classified information in any manner or form, except with
the approval of the Court Security Officer or in accordance
with procedures established by the Court Security Officer
for the operation of the SCIF. d. All documents prepared by
the defense (including, without limitation, pleadings or
other documents intended for filing with the Court) that do
or may contain classified information must be prepared in
the SCIF on TEMPEST-approved word processing equipment and
in accordance with the procedures approved by the Court
Security Officer. All such documents, and any associated
materials (such as notes, drafts, copies, typewriter
ribbons, magnetic recordings and exhibits) containing
classified information shall be maintained in the SCIF
unless and until the Court Security Officer determines that
those documents or associated materials are unclassified in
their entirety. e. The defendant, counsel for the
defendant, employees of counsel for the defendant, and any
potential witnesses and their counsel, shall discuss
classified information only within the SCIF or in an area
authorized by the Court Security Officer. f. The defendant,
counsel for defendant, employees of counsel for defendant
and any potential witnesses and their counsel shall not
discuss classified information over any standard commercial
telephone instrument or office intercommunication system.
g. Any documents written by the defense that do or may
contain classified information shall be transcribed,
recorded, typed, duplicated, copied or otherwise prepared
only by persons who have received an appropriate approval
for access to classified information.
9. Classified Information Procedures Act. Procedures
for the public disclosure of classified information by the
defense shall be governed by Sections 5 and 6 of CIPA. No
classified information may be disclosed by the defense
except: a. To the Court, court personnel, and government
attorneys and their agents and employees identified by the
Court Security Officer as holding proper approvals for
access to classified information; b. To representatives of
the agency or department originating the classified
information who have been identified by the Court Security
Officer as holding proper security clearances and having
the need to know the classified information; c. In
accordance with the procedures of CIPA and the procedures
established by the Court Security Officer; and d. To
persons who have been authorized to have access to
classified information pursuant to this Order or to CIPA.
10. Any unauthorized disclosure of classified
information may constitute violations of United States
criminal laws. In addition, any violation of the terms of
this Order shall be immediately brought to the attention of
the Court and may result in a charge of contempt of Court
and possible reference for criminal prosecution. Persons
subject to this Order are advised that direct or indirect
unauthorized disclosure, retention, or negligent handling
of classified documents or information could cause serious
damage, and in some cases exceptionally grave damage, to
the national security of the United States, or could be
used to the advantage of a foreign nation against the
interests of the United States.
*9 11. All classified information to which defendant,
counsel for defendant, employees of counsel for defendant,
or any potential witnesses and their counsel have access in
this case is now and will remain the property of the
Government. The defendant, counsel for the defendant,
employees of counsel for the defendant, and defense
witnesses shall return all classified information in their
possession obtained through discovery from the Government
in this case, or for which they are responsible because of
access to classified information, upon demand of the Court
Security Officer, after advance notice to the defense,
opportunity for a hearing, and approval from the Court.
The notes, summaries and other documents prepared by the
defense that do or may contain classified information shall
remain at all times in the custody of the Court Security
Officer for the duration of this case. At the conclusion
of this case, all such notes, summaries and other documents
are to be destroyed by the Court Security Officer in the
presence of counsel for the defendant.
12. A copy of this Order shall be issued forthwith to
counsel for defendant who shall be responsible for advising
the defendant, employees of counsel for the defendant, and
any potential witnesses and their counsel of the contents
of this Order. The defendant, counsel for the defendant,
any employee of counsel for the defendant and any defense
witness to be provided access to classified information
shall execute the Memorandum of Understanding described in
paragraph 7 of this Order, and counsel for the defendant
shall file executed originals with the Court under seal.
These memoranda and all information contained therein shall
not be available to any attorneys or other employees of the
Office of Independent Counsel, its staff, or investigators.
The execution and filing of the Memorandum of Understanding
is a condition precedent for the defendant, counsel for the
defendant, employees of counsel for the defendant, and
defense witnesses to have access to classified information.
13. To facilitate the defendant's filing of notices as
required under Section 5 of CIPA, the Court Security
Officer shall make arrangements with the respective
agencies for a determination of whether materials or
information either within the possession of the defense or
about which the defense has knowledge and that the defense
intends to use in any way at trial contain classified
information. No materials or information thus submitted by
the defense to the Court Security Officer pursuant to this
paragraph shall be made available to any attorney or other
employee of the Office of Independent Counsel, or its staff
or investigators unless so ordered by the court, or so
designated by the defense. Any and all of these items that
are classified shall be listed in the defendant's CIPA
Section 5 notice. The defendant shall also give notice of
any unclassified information that he intends to use at
trial, which may reasonably be expected to cause the
disclosure of classified information in any manner.
*10 Dated: June 30, 1992 /s/ Thomas F. Hogan
Thomas F. Hogan
United States District Judge
DEFENDANT'S EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America
v.
Caspar Weinberger, Defendant.
Crim. Action No. 92-235
ORDER
Upon consideration of the defendant's motion to modify
the protective order in the above-captioned case, and the
government's opposition thereto, it is this 26th day of
March, 1993, hereby
ORDERED that the motion to modify is DENIED except as
follows:
1) the information contained in the defense SCIF shall
be preserved at the National Archives for historical
purposes and reasonable accommodations shall be made to
allow the defendant access to the information as needed;
2) the material disclosed as potential Jenks Act
statements, including the grand jury materials which shall
remain confidential absent further order of the Court,
shall be returned to the government and shall be maintained
at the National Archives;
3) all other provisions of the protective order remain
in effect. /s/ Thomas F. Hogan
Thomas F. Hogan
United States District Judge

FOOTNOTE 1. The
Plaintiffs informed the Court that they did not oppose Mr.
Weinberger Motion to Intervene. See Plaintiffs' Response
to Motion to Intervene.

FOOTNOTE 2. These positions were adopted by the
Defendants before the Court of Appeals' recent decision in
this case, which held that the paper copies did not include
all of the essential information contained on the
electronic records. See Armstrong v. Executive Office of
the President, --- F.2d ----, (D.C.Cir. Aug. 13,
1993).

FOOTNOTE 3. The criminal case related to Mr.
Weinberger's appearances and testimony before the
congressional committees investigating the Iran-Contra
matter.

FOOTNOTE 4. The Protective Order and the subsequent
Modification are attached hereto and incorporated herein by
reference.

FOOTNOTE 5. The Defendants dispute that the Weinberger
materials are within the scope of the Plaintiff's existing
FOIA request. However, the Defendants recognize that the
Plaintiffs' right to make a new FOIA request and thus
realize that whether these materials are within the scope
of the Plaintiffs' original FOIA request is not dispositive
of whether these materials are subject to FOIA.
Defendants' Opposition, filed August 2, 1993, at 9 n. 7.
The Court agrees with the Defendants and therefore does not
address that issue.

FOOTNOTE 6. The Court in McGehee noted that an agency
may, under certain circumstances, limit its response to a
FOIA request to all materials existing as of the date of
the request. McGehee v. CIA, 697 F.2d 1095, 1102-03
modified on reh'g, 711 F.2d 1076 (D.C.Cir.1983). However,
the Court noted that an agency must demonstrate that such a
"time-of-request cut-off date" is reasonable under the
circumstances, and that a uniform policy setting forth the
standard of reasonableness was preferable. Id. at
1103-04. The Defendants have not presented any such
guidelines or rationale justifying a cut-off date in this
case.

FOOTNOTE 7. As there is no question as to whether
these materials can be released under the Protective Order,
it is not necessary to remand this matter to the agency to
seek clarification of the effect and intent of the
Protective Order from Judge Hogan. See Morgan v.
Department of Justice, 923 F.2d 195, 198 (D.C.Cir.1991) (an
agency cannot rely on the mere existence of a protective
order in a case without inquiring into its intended effect
as to the materials requested).
END



Scott ARMSTRONG, et al., Plaintiffs,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, et al., Defendants.
Civ. A. No. 89-142 (CRR).
United States District Court,
District of Columbia.
July 19, 1993.
Michael E. Tankersley, Public Citizen Litigation
Group, together with Allen Morrison and David C. Vladeck,
Public Citizen Litigation Group, Washington, DC, for
plaintiffs.
Jason R. Baron, Atty., U.S. Dept. of Justice, Civ.
Div., together with Stuart E. Schiffer, Acting Asst. Atty.
Gen., J. Ramsey Johnson, U.S. Atty. for the District of
Columbia, and David J. Anderson, Elizabeth A. Pugh, Anthony
J. Coppolino, Peter D. Coffman, and Pamela A. Moreau,
Attys., U.S. Dept. of Justice, Civil Division, Washington,
DC, for defendants.
ORDER

CHARLES R. RICHEY, District Judge.
*1 The above-captioned case came before the Court for
a status conference on July 13, 1993, pursuant to Rule 16
of the Federal Rules for Civil Procedure. At that time,
the Court discussed with the parties how to most quickly
and efficiently resolve the outstanding matters in this
lawsuit pertaining to the Freedom of Information Act
("FOIA"). 5 U.S.C. s 552, et seq.
On January 6 and 11, 1993, the Court granted Summary
Judgment to the Plaintiffs on Counts II and III of their
Third Amended Complaint, alleging claims under the Federal
Records Act ("FRA"), 44 U.S.C. ss 2101-2118, 2901-2910,
3101-3107, and 3301-3324, and the Administrative
Procedures Act ("APA"). 5 U.S.C. s 701 et seq. The Court
held, inter alia, that the information on the Defendants'
electronic communications systems at issue in this
litigation are subject to the FRA and that the federal
record keeping guidelines promulgated by the Defendant
agencies violated the FRA and were arbitrary and capricious
under the APA because they permitted the destruction of
these electronic federal records. See Armstrong v.
Executive Office of the President, 810 F.Supp. 335
(D.D.C.1993). The parties have each filed an appeal of the
Court's decision and the appeal is pending, sub judice,
before the Court of Appeals for the District of Columbia
Circuit. Armstrong v. Executive Office of the President,
810 F.Supp. 335 (D.D.C.1993), appeal docketed, Nos.
93-5002 and 93-5048 (D.C.Cir. Jan. 1, 1993, and Feb. 24,
1993).
The Plaintiffs' FOIA claim contained in Count I of
their Complaint remains to be resolved by this Court. In
this Count, the Plaintiffs have requested both electronic
and written materials under the FOIA. Now pending before
the Court are two Motions for Summary Judgment, filed by
the Defendants, as to the FOIA claims in this suit: the
first motion concerns the electronic materials requested by
the Plaintiffs while the second motion concerns the paper
material.
[1] The Motion regarding the electronic records
involves many of the same issues and arguments as are
currently before our Court of Appeals, sub judice, in
Counts II and III in this case. Therefore, the Court
concludes that the Defendants' Motion for Summary Judgment
on the FOIA concerning electronic materials is intertwined
with the issues currently before our Court of Appeals. As
the appeal is on an expedited schedule, the Court concludes
that it is in the interest of justice and judicial economy
to stay any ruling on this Motion until the appeal is
decided. However, the parties are on notice that the Court
shall address the Plaintiffs' FOIA claim regarding
electronic records as soon as possible after the Court of
Appeals issues its decision.
The other Motion for Summary judgment presently before
the Court concerns the Plaintiffs' FOIA claim for paper
materials. The Defendant has filed a partial motion for
summary judgment as to these papers materials and has
prepared a partial Vaughn v. Rosen index. The Plaintiffs
object to any piecemeal disposition of their FOIA claim for
paper materials and have not yet responded to this Motion.
See Plaintiffs' Reply in Support of Motion to Compel
Completion of Vaughn index. instead, the Plaintiffs have
filed a Motion to Compel Completion of the Vaughn index so
that the Court can resolve all the FOIA requests for papers
materials at the same time and the Plaintiffs have
requested an extension of time to file their Opposition to
the Defendants' Motion until a complete Vaughn index has
been prepared.
*2 [2] At the status conference, both parties agreed
that an updated and complete Vaughn index was needed before
the Court could resolve the FOIA claims as to all of the
paper materials. [Footnote 1] The Court concludes that it
is in the interest of justice and judicial economy to
resolve all of the FOIA claims as to the papers materials
at the same time. Furthermore, the Court notes that the
Defendant agencies bear the burden of sustaining their
withholding of records, 5 U.S.C. s 552(a)(4)(B), and that a
complete Vaughn index is required to explain the agencies'
justification for withholding each document or category of
documents. See Vaughn v. Rosen, 484 F.2d 820, 827
(D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564,
39 L.Ed.2d 873 (1974). Therefore, in light of the parties
agreement that a complete Vaughn index is needed, the Court
shall grant the Plaintiffs' Motion to Compel Completion of
the Vaughn index and shall order the Defendants to complete
the Vaughn index within 30 days of the date of this order.
Furthermore, the parties shall file dispositive motions as
to these paper materials as soon as the Vaughn index is
completed.
Accordingly, it is, by the Court, this 19th day of
July, 1993,
ORDERED that the Defendants' Motion for Summary
Judgment on the Plaintiffs' Freedom of Information Act
claims concerning electronic records shall be, and hereby
is, STAYED pending the decision of the Court of Appeals for
the District of Columbia Circuit in Armstrong v. Executive
Office of the President, 810 F.Supp. 335 (D.D.C.1993),
appeal docketed, Nos. 93-5002 and 93-5048 (D.C.Cir. Jan.
1, 1993, and Feb. 24, 1993); and it is
FURTHER ORDERED that the Plaintiff's Motion to Compel
the Completion of the Vaughn index shall be, and hereby is,
GRANTED; and it is
FURTHER ORDERED that the Defendants' shall file a
complete Vaughn v. Rosen index on or before 4:00 p.m. on
August 18, 1993; and it is
FURTHER ORDERED that the parties shall file any and
dispositive motions pertaining to the Plaintiffs' Freedom
of Information Act claims for paper materials on or before
4:00 p.m. on August 25, 1993; and it is
FURTHER ORDERED that the parties shall file their
opposition on or before 4:00 p.m. on September 7, 1993;
and it is
FURTHER ORDERED that the parties shall file their
reply on or before 4:00 p.m. on September 13, 1993; and it
is
FURTHER ORDERED that the Defendants' Motion for
Partial Summary Judgment on the Plaintiffs' Freedom of
Information Act claims concerning paper materials shall be
and hereby is DENIED without prejudice; and it is
FURTHER ORDERED that the Plaintiffs' Motion for an
Extension of Time to Respond to the Defendants' motion for
Partial Summary Judgment shall be, and hereby is DENIED as
moot.

FOOTNOTE 1. In a status report to the Court filed on
July 12, 1993, the Defendants informed the Court that they
had finally responded to all of the Plaintiffs FOIA
requests for paper materials. At the conference, the
Defendants agreed that a final Vaughn index was need to
bring all of the Plaintiffs' FOIA claim for paper materials
before the Court for resolution.
END

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