USTR has rejected a KEI FOIA request for a Congressional Research Service study of ACTA that was done for Senate Ron Wyden. Senator Wyden shared the report with USTR. USTR acknowledges that it has possession of the document, but asserts it does not have control. Public Citizen has agreed to represent KEI in an appeal of the decision. Our administrative appeal was filed today.
March 23, 2011
FOIA Appeals Committee
Office of the Untied States Trade Representative
1724 F Street NW
Washington, DC 20508
Re: Freedom of Information Act Appeal
Dear FOIA Appeals Committee:
This letter is an appeal from your February 25, 2011 denial of my January 7, 2011 and February 8, 2011 requests under the Freedom of Information Act (FOIA) for a
fairly recent study [on the Anti-Counterfeiting Trade Agreement] by the Library of Congress, done upon request for Senator Wyden. This study examined the consistency of US law to ACTA. Senator Wyden or his staff has shared this document with Stan McCoy and other USTR officials.
Your denial letter states that this study is not an agency record because the Congressional Research Service retained control over it.
I request that you reconsider the denial. Agency records are subject to FOIA. A record produced by Congress and later acquired by the agency qualifies as an agency record if the agency controls it. U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989). The issue of control turns in large part on whether evidence exists that Congress intended to control exclusively the record. United We Stand Am., Inc. v. I.R.S., 359 F.3d 595, 600 (D.C. Cir. 2004). For example, in Goland v. Cent. Intelligence Agency, 607 F.2d 339, 347 (D.C. Cir. 1978), Congress gave a hearing transcript to the CIA for internal reference purposes only. It marked the transcript “secret” and explained that only it had the power to declassify it. Based on the “circumstances attending the document’s generation and the conditions attached to its possession by the CIA,” the court concluded that Congress, not the CIA, had control over it. By contrast, in Holy Spirit Ass’n for the Unification of World Christianity v. Cent. Intelligence Agency, 636 F.2d 838, 843 (D.C. Cir. 1980), Congress gave records to the CIA “with no accompanying letter or instructions.” Under those circumstances, the court found “insufficient evidence of Congress’ intent to retain control over [the] documents.”
Here, as in Holy Spirit, no evidence exists that Senator Wyden’s office put any conditions or limitations on USTR’s use of the report. Accordingly, Congress cannot be said to retain exclusive control over the report, and therefore it is an agency record subject to FOIA.
Thank you for your time and attention to this matter. I will expect a determination with respect to this appeal within twenty working days, as required by law. If you have any questions regarding this appeal, please contact me at 1.202.332.2670 or Michael Page, an attorney at Public Citizen Litigation Group, at 1.202.588.7733.