Later in 1949, as part of the Reorganization Plan, the Council was placed in the Executive Office of the President. In upholding a statute giving the Administrator of General Services the authority to take custody of former President Nixon's presidential papers and tape recordings, the Supreme Court noted that there was "abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive Branch." The dissent dismisses this last point on the ground that the APA treats as an agency even an entity whose decisions are "subject to review by another agency." At the very least, the Special Planning Group's function of "periodically review[ing] the activities of the four permanent coordinating committees to insure that plans are being implemented and that resource commitments are commensurate with established priorities," id., is sufficiently similar to the evaluative function that we found in Soucie warranted treating the OST as an agency. 44 U.S.C. 335 (D.D.C. Indeed, the broad applicability of the national security exemption to NSC records likely explains the NSC's ready compliance with FOIA for nineteen years under Presidents Ford, Carter, Reagan, and Bush. Focusing upon a regulation promulgated under the since-revoked Executive Order that authorized the NSC to decide whether a federal agency should be granted a waiver permitting it to use a non-standard security form for access to classified information, 32 C.F.R. It seems implicit that members of the [Council] were not expected to resolve disputes themselves, without presenting those disputes to the President, unless they already knew the President's views on the exact issue. Cabinet, EOP, and White House Staff - Politics Stack OMB Control Number:0607-0810. OMB Statement on Enhancing The Security Of - The In NSDD 77 the President directed an interagency Special Planning Group, chaired by the National Security Adviser, to engage in "diplomatic and technical planning relative to modernization of U.S. international broadcasting capabilities, the development of anti-jamming strategies and techniques, planning relative to direct radio broadcast by satellite and longer term considerations of the potential for direct T.V. at 16, is beside the point. 1995). If the SNEC reaches agreement on the application, the Commerce Department must consider the SNEC's recommendation, see 50 U.S.C. 1980), we found no basis in FOIA to distinguish between the Attorney General and the Department of Justice such that the Attorney General would not be an agency for FOIA purposes when acting solely in an advisory capacity to the President. Issue their own information quality guidelines ensuring and maximizing the quality, utility, integrity, and objectivity of information disseminated by the agency; Establish an administrative mechanism allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with these guidelines; and. Apparently to make clear that proximity to the President is important to the extent that it suggests something about function, we explained that the proximity factor referred to a unit's "continuing interaction" with the President. The court offers no explanation, however, of what it would have Armstrong show. Whether the regulation that gives the NSC the power to grant these waivers is still in effect is not entirely clear. Memorandum from the President, Mar. Finally, the differences in the statutes' provisions for judicial review cannot sustain the Government's constitutional claim. at 702, are really nothing more than the internal management of the information that the NSC generates in advising the President. Off. Because the APA treats as agencies even entities whose decisions are "subject to review by another agency," 5 U.S.C. 1995). In my view, the record demonstrates that the NSC exercises, in areas such as information security, telecommunications, non-proliferation, and public diplomacy, just the sorts of independent authority that our cases hold satisfy the requirements of the FOIA definition of "agency." To be an agency under the Administrative Procedure Act (and thus FOIA) an entity does not need to be able to act without consent. I know that (vaguely speaking), the Cabinet advises the president on issues and is composed of the heads of the executive departments. Pacific Legal Found., 636 F.2d at 1265 (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)). NSC (National security council) Brings together the powerful officers Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges. In Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. The Office of Science and Technology is within the ambit of the FOIA, notwithstanding its proximity to the President, because it has independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. Executive Office of the President | George W. Bush Library 551(1) (agency defined as "each authority of the Government of the United States"). 690, 706 (D.D.C. Significantly, the relevant regulation does not give this power to the National Security Advisor, but rather states that "[o]nly the National Security Council may grant" such waivers. Nixon, 433 U.S. at 443 ("[I]n determining whether the [Presidential Recordings and Materials Preservation] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. at 786-89. CONF. at 175 (1983), reprinted in 50 U.S.C. NUREG-0899, 'Guidelines for the Preparation of Emergency That an entity's actions are subject to the President's consent is hardly unusual and should certainly not be a basis for exempting an entity from FOIA. President Clinton adopted the OLC's new position but instructed his NSA, Anthony Lake, that the NSC should voluntarily disclose "appropriate" records, including those that had been "transferred by one Administration to another for transition and continuity purposes." Federal regulations establish that, as part of a "government-wide information security program" to "enhance the protection of national security information and/or [to] reduce the costs associated with its protection," executive branch departments and independent agencies must use a standard non-disclosure form (or one of its predecessors). For our present purpose it is sufficient to recall that the district court concluded that certain items stored in the NSC's computer system are records subject to the FRA, and that the NSC's guidelines relating to the preservation of those records were arbitrary and capricious. Armstrong also suggests that, quite apart from the Meyer test, the NSC's own past statements and conduct demonstrate that the NSC has functions in addition to those of advising and assisting the President. Therefore, the NSC's waiver authority, when it existed, was alone sufficient to bring the NSC within FOIA's definition of "agency.". The NSC coordinates the work of four standing committees of the Special Planning Group, each of which is chaired by a member agency. In determining whether an entity is an agency we do not lump together all its activities that advance any goal of the executive branch. For example, a unit within the Executive Office of the President might be viewed as merely assisting the President if its activities prepare the President for action or facilitate his actions. Cabinet secretaries are political appointees, but they still have to keep a lot of people happy: the President, their own departments (who they work with every day and who provide the main advisors to secretaries), Congressional committees, and others. President Clinton's National Security Adviser, Anthony Lake, implies, in a declaration submitted to the district court, that the NSC is not the self-contained structure it might seem from a glance at its organization chart. I dissent. Id. I raise this point because, with respect to another NSC function, the court expresses its "reluctan[ce] to consider the mere formality of a delegation of authority, unexercised and for all that appears, therefore, of no consequence, the indicium of an entity with substantial independence from the President." The OMB guidelines further establish the following schedule: January 1, 2004 and each January 1 thereafter, Page Last Reviewed/Updated Thursday, August 17, 2017, Controlled Unclassified Information Program (CUI), Contact Us To Seek Correction of NRC Information, License Renewal Generic Environmental Review. Only with a strong showing that the NSC staff exercises substantial independent authority, therefore, could Armstrong succeed in portraying the NSC as an agency subject to the FOIA. 2003.20(k). FDR created the EOP for pretty much the same reason. As applied to an official or a group of officials who serve in dual roles, the two tests may yield different results. The White House March 07, 2022 OMB Statement on Enhancing The Security Of Federally Procured Software OMB Briefing Room Press Releases On May 12, 2021, Id. 201-216 (1995). Id. Section 515(a) of the Treasury and General Government Appropriations Act, FY 2001 (P.L. 2. In applying the legislative-history-based Meyer test, it therefore makes sense to take into account legislative history relevant to the NSC's status, not to sidestep Meyer and its elaboration of Soucie's sole function test, but to hold in check this court's application of that test. The NSC, an entity within the Executive Office of the President that complied with FOIA during the administrations of Presidents Ford, Carter, Reagan, and Bush, declared itself exempt from FOIA only recently while this litigation was pending. Because we have concluded that the NSC is not, after all, an agency subject to the FOIA, the district court's alternative rationale, regardless of its provenance, is now moot. Id. at 156. It defies the purpose of FOIA to suggest, however, that the statute Congress passed to bring government operation into more public view would not entitle the public to important information about the entity-including, for example, information about whether it is in fact prepared to carry out its responsibilities in case of a national emergency-until it is too late for the information to be of perhaps its most important use. The record contains no evidence that the conduct of foreign affairs or national security preparedness under Presidents Ford, Carter, Reagan, and Bush, or indeed during the first year of the Clinton Administration, suffered from FOIA compliance. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 50 U.S.C. 1980), we held that the Council on Environmental Quality is an agency because of its independent authority to "issue guidelines to federal agencies," "coordinate federal programs," and oversee certain activities of other federal agencies. 876, 93d Cong., 2d Sess. Although I agree with the court's conclusion that the NSC has a self-contained structure-Meyer's final factor-I think the court fails to appreciate the functional nature of the Meyer inquiry in its analysis of the first two factors. 552(b)(5); 44 U.S.C. Under none of these, however, does the NSC appear to exercise any significant non-advisory function. Administrative Procedure Act, 5 U.S.C. Armstrong responds by emphasizing the hierarchical NSC organization chart, which, he argues, reveals an elaborate, self-contained structure and bureaucracy of the sort indicative of an agency under the analysis in Meyer. Armstrong maintains that while the Secretary has been delegated authority over some specified matters involving telecommunications, the NSC is responsible for other matters. Because the non-proliferation procedures explicitly provide that the President has final authority to resolve interagency disagreements on the SNEC, review by the NSC Ad Hoc Group on Non-Proliferation in the event that the SNEC cannot reach agreement does not qualify as substantial independent authority under Meyer. 1995). NSDD 77 specifies that "[a]mong its principal responsibilities will be diplomatic and technical planning relative to modernization of U.S. international broadcasting capabilities" and "the development of anti-jamming strategies and techniques." Armstrong argues next that the NSC has a non-advisory role in controlling the National Communications System-a consortium of entities responsible for providing communications for the federal government under emergency conditions, including nuclear attack. The district court rejected this argument, as would I. 2101), and, as the record in this case indicates, the NSC had complied in 1975, 1976, 1977, and 1978 with FOIA's requirement that each covered agency annually submit a copy of its FOIA regulations and a report of its administration of FOIA to the Speaker of the House of Representatives and to the President of the Senate for referral to appropriate congressional committees, see 5 U.S.C. 2204(a), thereby allowing the President while in office to avoid the supposedly intrusive effects of FOIA and the Federal Records Act. A member of the Council acts not as the head of his or her department but as an adviser or assistant to the President. at 20. 1 (1995), that examination is actually undertaken not by the NSC but by an ad hoc interagency working group that may not even qualify as an "establishment within the executive branch." Will just the increase in height of water column increase pressure or does mass play any role in it? When pressed for an example, Armstrong referred the court to 3.1(c) of Executive Order 12,356, in which the President authorized the NSC to hear appeals from the decisions of the Information Security Oversight Office, an entity outside the NSC with jurisdiction over declassification procedures. See Exec. H.R. Id. Freddi Lipstein, Senior Counsel, United States Department of Justice, argued the cause for appellants, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Leonard Schaitman, Attorney, United States Department of Justice, were on the briefs. REP. NO. Although saying that an entity does not seem "independent" if it must obtain consent before acting makes a certain amount of linguistic sense, this cannot be what our cases mean by "independent." 2201 et seq., which applies to most NSC documents, provides in part that a president's records are to be made publicly available five years after he leaves office, except that national defense and certain other information is to be made available no later than 12 years after the end of a president's term. As an initial matter, the SNEC-an interagency working group that includes a nonvoting NSC representative and voting representatives from the Departments of Commerce, Energy, Defense, and State and the Arms Control and Disarmament Agency-is clearly part of the NSC. That is, even an entity that acts only with the consent of another agency could still be an agency under the APA and thus under FOIA. ONE Understanding OMBs Role in Presidential Policymaking 44 U.S.C. Moreover, FOIA's exemption for national security materials, combined with the inapplicability of FOIA and the Federal Records Act to certain materials produced by NSC members who hold separate non-NSC positions, such as in the Office of the President or the Office of the Vice President, ensures that the NSC's compliance with these statutes would not interfere with the President's development of foreign policy. In determining whether an EOP unit exercises independent authority or only advises and assists the President, I would therefore focus on whether the unit actually takes action itself, as opposed to taking steps simply to assist the President in taking action. 2204(c)(1). At the same time, the coverage of the FRA is coextensive with the definition of "agency" in the FOIA, see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. The three-part test of Meyer is designed succinctly to capture the court's prior learning on the subject whether a unit within the Executive Office of the President is an agency covered by the FOIA. at 7, our precedents seem to require us to view them, to the extent possible, as essentially opposite sides of the same coin. (citation omitted)). See Management of Public Diplomacy Relative to National Security, NSDD 77 at 1 (Jan. 14, 1983). Accordingly, Armstrong must make a strong showing indeed regarding the remaining factor under Meyer before we can conclude that the NSC exercises substantial authority, independent of the President. 2201(2)(B), this court has treated the definition of "agency" in the Federal Records Act as coterminous with the FOIA definition of "agency," see Armstrong II, 1 F.3d at 1293. 552(f), that is, whether the NSC is an "executive department or other establishment in the executive branch." 10998 and Related Bills Before a Subcomm. In my view, the court's failure to appreciate the functional focus of the Meyer inquiry has led it to the erroneous conclusion that the NSC does not exercise substantial independent authority apart from advising and assisting the President. Michael J. The Meyer test is premised in part on the notion that, in order for an EOP unit to be considered an agency, it must not be too similar to the President's personal staff; in other words, the agency must take some sort of action that is independent of the President's action. As we observed in Ryan, see 617 F.2d at 787-89, nothing in FOIA, in its legislative history, or in Soucie, which the legislative history purports to adopt, supports treating agencies or their parts as non-agencies whenever they perform advisory functions. In my view, then, the NSC's telecommunications responsibilities are enough to render it an "agency" for FOIA and Federal Records Act purposes. at 3. F, 1(b), reprinted in 15 C.F.R. 551(1). WebThe Office of Management and Budget, or OMB, is the largest agency of the EOP and is responsible for preparing the national budget that the president proposes to Congress Indeed, we find it inconceivable that the DCI, who himself sits on the Principals Committee (the senior interagency decision-making group for national security policy), would take direction from a member of the NSC staff acting on his or her own behalf. The Executive Office of the President, or EOP, is made up of offices that support the President. 8 (1974), reprinted in 1974 U.S.C.C.A.N. Indeed, we are told, successive presidents expanded the NSC's responsibilities not in order to hypothecate their powers but, on the contrary, the better to secure their personal control over the fragmented national security apparatus. 2201(2)(B). at 1293. App. 2204. Browse other questions tagged, Start here for a quick overview of the site, Detailed answers to any questions you might have, Discuss the workings and policies of this site. Quality, 636 F.2d 1259, 1264 (D.C. Cir. We review below his best examples, each of which the Government vigorously disputes. Such indications in the legislative history of the Presidential Records Act that those who enacted that statute likely thought that it would not cover the NSC should make us hesitant to rule that Congress did not subject the NSC to FOIA. We are hesitant to conclude that merely "overseeing" (if it does) and reporting to the President upon the activities of others are functions sufficiently distinct from advising and assisting the President to weigh in favor of treating the NSC as an agency subject to the FOIA. 2 Op. We have suggested that such broad constitutional attacks are inappropriate if in particular contexts steps might be taken to avoid undue intrusions on the executive branch. He contends that the NSC's declassification function extends to all "material produced or processed for the NSC staff, even if not originally classified by an authorized member of the staff." The development of a plan, without more, does not attest to its independent preparation much less to its adoption without the consent of the President or his NSA. The regulation affords a scant basis upon which to conclude that the NSC can act, independent of the President, should an emergency arise. 1985); Soucie, 448 F.2d at 1073, 1075. When, four months thereafter, the Government still had not promulgated new guidelines for the management of those electronic records, the district court entered an order of contempt. Armstrong maintains that this provision (as "reinforced" by Executive Order 12,333) delegates independent authority to the NSC. 2003.20(k), Judge Tatel suggests not only that we look to whether the NSC was an agency when the disputed records were produced, but also that the regulation may remain in effect notwithstanding the revocation of Executive Order 12,356 and the issuance of Executive Order 12,958. The record persuasively demonstrates that the NSC has repeatedly performed a classic agency adjudicatory function in deciding whether waivers should be granted to permit federal agencies to use non-standard security forms. 5.1(a), 3 C.F.R. 690, 705-06 (D.D.C. Protection of national security information. to Combat Transnational Organized Crime Cabinet take direct orders from the President? Singer, Assistant Director, and Matthew M. Collette, Attorney, United States Department of Justice, entered appearances. WebState Department OMB approved Information Collections are not hard to miss. Government." To me, this is a classic example of substantial independent authority. 759, 778 (1978) [hereinafter Presidential Records Act Hearings]. On this appeal the Government contends, inter alia, that the interaction between the President and the NSC requires privacy and confidentiality. The NSC is chaired by the President. Therein lies the crux of our disagreement. 1993), we held that in determining whether an entity within the Executive Office of the President that "help[s] the President supervise others in the executive branch" exercises substantial independent authority, we should focus on three factors: the unit's proximity to the President, "the nature of its delegation from the President," and "whether it has a self-contained structure." Id. In 1983, National Security Decision Directive 77 established an NSC Special Planning Group chaired by the Assistant to the President for National Security Affairs and including as members the Secretaries of Defense and State, the Directors of the United States Information Agency and the Agency for International Development, and the Assistant to the President for Communications. We treated the three factors not as elements to be weighed against each other as in a balancing test, but rather as keys to understanding the nature of an EOP unit's functions in order to determine whether the unit exercises substantial independent authority apart from advising and assisting the President. The Office of Management and Budget is a FOIA agency, in part because it has a statutory duty to provide budget information to the Congress. 435. Federal departments are massive organizations, largely made up of career civil servants instead of political allies. Nor do the staff of the Executive Residence come under the FOIA; their duty is to manage the President's home subject to his direction and approval, which they do without the delegation of substantial independent authority. One of these committees, the International Political Committee, is "responsible for planning, coordinating and implementing international political activities in support of United States policies and interests relative to national security." Web2 executive office of the president office of management and budget washington, d.c. 20503 december 2, 2021 m-22-03 memorandum for the heads of executive departments and See Soucie, 448 F.2d at 1073, 1075. Rather, the NSC exercises authority independent of the President in several areas, including: overseeing the CIA, providing guidance and direction to the intelligence community, and protecting classified information. 50 U.S.C. Second, record-keeping requirements of the FRA are subject to judicial review and enforcement; those of the PRA are not. There is nothing to indicate that the Congress intended specifically to define the NSC as a FOIA agency apart from a judicial determination to that effect. at 19,838-39. If the organizational lines of authority and responsibility within the NSC are undefined, or the NSC cannot readily be distinguished from other elements of the Executive Office of the President that solely advise and assist the President, then we do not need to go any further down the Meyer road in order to conclude that the NSC is not a distinct agency. 89-0142). This does not settle whether, in those more numerous cases in which the SNEC reaches agreement about an export license application, SNEC application review and SNEC recommendations to the Commerce Department constitute exercises of substantial independent authority. This Special Planning Group is "responsible for the overall planning, direction, coordination and monitoring of implementation of public diplomacy activities." The APA definition of "agency"-which is less encompassing than the FOIA definition-includes "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." If Armstrong shows that the NSC does exercise substantial independent authority, then the NSC cannot be said solely to advise and assist the President; that is the consequence of the "sole function" test set forth in the Conference Report and fleshed out in Meyer. The questions and related workshop will be forward looking, focusing exclusively on best practices for implementing the SSDF, and approaches for attesting to secure software development practices. rev2023.7.7.43526. Office of Management and Budget - Wikipedia Learn more about Stack Overflow the company, and our products. The Supreme Court's holding in Kissinger was quite limited. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Identify EOP, OMB, NSC. | Quizlet 5.2(a), 5.3, 60 Fed. Id. 2201-07 (1994), see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. Therefore we identified "three interrelated factors" relevant to determining whether those who both advise the President and supervise others in the Executive Branch exercise "substantial independent authority" and hence should be deemed an agency subject to the FOIA. Our dissenting colleague goes further, however. Control over the National Communications System is not, however, assigned to the NSC; the presidentially appointed "Executive Agent" is the Secretary of Defense.
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