Inside The EFoIA Debate p.37

By: DEBRA GERSH HERNANDEZ

AS THE ELECTRONIC Freedom of Information Act was poised to take the floor in the House of Representatives, attendees of an FoIA anniversary conference found themselves in hot debate over whether to push for additional language in the bill.
The proposal, which would designate the National Security Council as an FoIA-able agency, was put forth by journalist Scott Armstrong.
Armstrong had recently lost an appeal in federal court seeking to designate the NSC as an agency.
Since 1978, certain operations of the NSC had been treated as agency functions subject to FoIA. The Clinton administration adopted a new position, whereby all NSC documents would be considered presidential records, which are exempt from FoIA.
Judge Douglas H. Ginsburg, writing for the 2-1 majority of the U.S. Court of Appeals for the District of Columbia, found that, "Because the NSC operates in close proximity to the president, who chairs it, and because the NSC does not exercise substantial authority . . . the NSC is not an agency within the meaning of the FoIA."
Further, Ginsburg wrote, "that the NSC, in the interests of permitting public access to some NSC records and ensuring a smooth transition on national security matters, voluntarily subjected certain of its records to the FoIA and the FRA [Federal Records Act] does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to those statutes."
In his dissent, however, Judge David S. Tatel pointed out that "applying FoIA to the NSC presents little risk of improper intrusion into the president's exercise of his constitutional responsibilities."
"Indeed," he continued, "the broad applicability of the national security exemption to NSC records likely explains the NSC's ready compliance with FoIA for 19 years under presidents Ford, Carter, Reagan and Bush."
With the appeals decision coming down in August and Congress reconvening in September, with EFoIA slated for movement in mid-month, Armstrong figured he and his supporters had better move quickly.
Further, with little hope for success of an en banc appeal or in the U.S. Supreme Court, legislation looked like the route to take, he explained.
Despite protestations that including the NSC provision in EFoIA would almost certainly mean a veto from the White House, Armstrong said he believed it would be worth it.
"I thought you have one little window of opportunity here. The cost is the possibility of getting the Electronic FoIA vetoed," he said.
Sen. Patrick Leahy (D-Vt.), a primary sponsor of the Senate bill and a longtime leader in pushing this legislation, spoke at the Thursday night opening of the FoIA conference.
After spending the day talking to House members, who indicated they wanted to know what the Senate was thinking about his proposal, Armstrong said he cornered Leahy and asked him for his position.
Leahy reportedly said he would not jeopardize the bill by adding the NSC language, Armstrong said.
The following afternoon, Armstrong proposed to the FoIA conference attendees that a group of them, as representatives of the coalition sponsoring the meeting, go up to the Hill to speak to Leahy and others about including NSC language.
Many of those who had been working on the bill for months argued against Armstrong and his allies, maintaining that the agreement they had reached for passable legislation would be endangered by such a demand, which was coming too late in the process.
After a vote found conferees split, Armstrong agreed to withdraw his proposal for lack of a consensus. Not to be deterred, however, Armstrong continued to search for a home for the NSC provision, looking at a war crimes disclosure act and treasury and postal appropriations, but finding no appropriate vehicle.
Part of the urgency came from having a Republican Congress and a Democratic president, which may or may not be the case after the next election.
"I think we're better off with Republicans on this issue. That's why I was pushing on Friday," Armstrong said. "In the next Congress, it's going to be difficult to do it again."
Armstrong said he will continue to fight on the judicial and legislative fronts and hopes that legislators will at least indicate to the White House that any action regarding disposal of NSC documents be delayed until the issue is resolved.