Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files

Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files It is the policy of the Executive Branch to decline to provide committees of Congress with access to or copies of law enforcement files, or materials in investigative files whose disclosure might adversely affect a pending enforcement action, overall enforcement policy, or the rights of individuals. Congressional assurance of confidentiality cannot overcome concern over the integrity of law enforcement files, not only because of concern over potential public distribution of the documents by Congress, but because of the importance of preventing direct congressional influence on investigations in progress. It is the constitutional responsibility of the Executive to determine whether and when materials in law enforcement files may be distributed publicly, and this responsibility cannot and will not be delegated to Congress. The principle of executive privilege will not be invoked to shield documents which contain evidence of cnminal or unethical conduct by agency officials, and the documents at issue here have been made available for inspection by congressional staff members to confirm their proper characteriza- tion in this regard. November 30, 1982 T h e C h a i r m a n o f t h e S u b c o m m i t t e e o n O v e r s i g h t a n d I n v e s t i g a t i o n s C o m m i t t e e o n E n e r g y a n d C o m m e r c e U n i t e d S t a t e s H o u s e o f R e p r e s e n t a t i v e s De a r M r . Ch a ir m a n : This letter responds to your letter to me of November 8, 1982, in which you, on behalf of the Subcommittee on Oversight and Investiga- tions of the Committee on Energy and Commerce of the House of Representa- tives, continue to seek to compel the production to your subcommittee of copies of sensitive open law enforcement investigative files (referred to herein for convenience simply as law enforcement files) of the Environmental Protection Agency (EPA). Demands for other EPA files, including similar law enforcement files, have also been made by the Subcommittee on Investigations and Oversight of the Public W orks and Transportation Com m ittee of the House of Representatives. Since the issues raised by these demands and others like them are important ones to two separate and independent branches of our Nation’s government, I shall reiterate at some length in this letter the longstanding position of the 31 Executive Branch with respect to such matters. I do so with the knowledge and concurrence of the President. As the President announced in a memorandum to the heads of all executive departments and agencies on November 4, 1982, “[t]he policy of this Admin- istration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Ex- ecutive Branch. . . . [Executive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary.” Memorandum from the President to the Heads of Executive Departments and Agencies (Nov. 4, 1982), re: “Procedures Governing Responses to Congressional Requests for Information,” at 1. Nev- ertheless, it has been the policy of the Executive Branch throughout this Nation’s history generally to decline to provide committees of Congress with access to or copies of law enforcement files except in the most extraordinary circumstances. Attorney General Robert Jackson, subsequently a Justice of the Supreme Court, restated this position to Congress over 40 years ago: It is the position of [the] Department [of Justice], restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to ‘take care that the laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest. Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospec- tive defendant, could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. 40 Op. A tt’y Gen. 45, 46 (1941). This policy does not extend to all material contained in investigative files. Depending upon the nature of the specific files and the type of investigation involved, much of the information contained in such files may and is routinely shared with Congress in response to a proper request. Indeed, in response to your subcommittee’s request, considerable quantities of documents and factual data have been provided to you. The EPA estimates that approximately 40,000 documents have been made available for your subcommittee and its staff to examine relative to the three hazardous waste sites in which you have expressed an interest. The only documents which have been withheld are those which are sensitive memoranda or notes by EPA attorneys and investigators reflecting enforcement strategy, legal analysis, lists of potential witnesses, settlement considerations, and similar materials the disclosure of which might adversely affect a pending enforcement action, overall enforcement policy, or the rights of individuals. 32 I continue to believe, as have my predecessors, that unrestricted dissemination of law enforcement files would prejudice the cause of effective law enforcement and, because the reasons for the policy of confidentiality are as sound and fundamental to the administration of justice today as they were 40 years ago, I see no reason to depart from the consistent position of previous Presidents and attorneys general. As articulated by former Deputy Assistant Attorney General Thomas E. Kauper over a decade ago, the Executive cannot effectively investigate if Congress is, in a sense, a partner in the investigation. If a congressional committee is fully apprised of all details of an investigation as the investiga- tion proceeds, there is a substantial danger that congressional pressures will influence the course of the investigation. Memorandum from Thomas E. Kauper, Deputy Assistant Attorney General, Office of Legal Counsel, to Edward L. Morgan, Deputy Counsel to the President (Dec. 19, 1969), re: “Proposed letter from Secretary of the Army Resor to Chairman Rivers re submission of open C1D investigative files,” at 2. Other objections to the disclosure of law enforcement files include the poten- tial damage to proper law enforcement which would be caused by the revelation of sensitive techniques, methods, or strategy; concern over the safety of con- fidential informants and the chilling effect on sources of information if the contents of files are widely disseminated; sensitivity to the rights of innocent individuals who may be identified in law enforcement files but who may not be guilty of any violation of law; and well-founded fears that the perception of the integrity, impartiality, and fairness of the law enforcement process as a whole will be damaged if sensitive material is distributed beyond those persons neces- sarily involved in the investigation and prosecution process. Our policy is premised in part on the fact that the Constitution vests in the President and his subordinates the responsibility to “take Care that the Laws be faithfully ex- ecuted.” U.S. Const., Art. II, § 3. The courts have repeatedly held that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case. . . .” United States v. Nixon, 418 U.S. 683, 693 (1974). The policy which I reiterate here was first expressed by President Washington and has been reaffirmed by or on behalf of most of our Presidents, includ- ing Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower. I am aware of no President who has departed from this policy regarding the general confidentiality of law enforcement files. I also agree with Attorney General Jackson’s view that promises of con- fidentiality by a congressional committee or subcommittee do not remove the basis for the policy of nondisclosure of law enforcement files. As Attorney General Jackson observed in writing to Congressman Carl Vinson, then Chair- man of the House Committee on Naval Affairs, in 1941: I am not unmindful of your conditional suggestion that your counsel will keep this information “inviolate until such time as the 33 committee determines its disposition.” I have no doubt that this pledge would be kept and that you would weigh every considera- tion before making any matter public. Unfortunately, however, a policy cannot be made anew because of personal confidence of the Attorney General in the integrity and good faith of a particular committee chairman. We cannot be put in the position of discrimi- nating between committees or of attempting to judge between them, and their individual members, each of whom has access to information once placed in the hands of the committee. 40 Op. A tt’y Gen. at 50. Deputy Assistant Attorney General Kauper articulated additional considera- tions in explaining why congressional assurances of confidentiality could not overcome concern over the integrity of law enforcement files: [S]uch assurances have not led to a relaxation of the general principle that open investigative files will not be supplied to Congress, for several reasons. First, to the extent the principle rests on the prevention of direct congressional influence upon investigations in progress, dissemination to the Congress, not by it, is the critical factor. Second, there is the always present concern, often factually justified, with “leaks.” Third, members of Congress may comment or publicly draw conclusions from such documents, without in fact disclosing their contents. Kauper Memorandum at 3. It has never been the position o f the Executive Branch that providing copies of law enforcement files to congressional committees necessarily will result in the documents’ being made public. We are confident that your subcommittee and other congressional committees would guard such documents carefully. Nor do I mean to imply that any particular committee would necessarily “leak” documents improperly although, as you know, that phenomenon has occasionally occurred. Concern over potential public distribution of the documents is only a part of the basis for the Executive’s position. At bottom, the President has a responsibility vested in him by the Constitution to protect the confidentiality of certain docu- ments which he cannot delegate to the Legislative Branch. With regard to the assurance of confidential treatment contained in your November 8, 1982, letter, I am sensitive to Rule XI, Clause 2, § 706c of the Rules of the House of Representatives, which provides that “[a]ll committee hearings, records, data, charts, and files . . . shall be the property of the House and all Members c f the House shall have access thereto. . . .” In order to avoid the requirements of this rule regarding access to documents by all Members of the House, your November 8 letter offers to receive these documents in “executive session” pursuant to Rule XI, Clause 2, § 712. It is apparently on the basis of §7 1 2 that your November 8 letter states that providing these materials to your subcommittee is not equivalent to making the documents “public.” But, as is 34 evident from your accurate rendition of § 712, the only protection given such materials by that section and your understanding of it is that they shall not be made public, in your own words, “without the consent of the Subcommittee.” Notwithstanding the sincerity of your view that § 712 provides adequate protection to the Executive Branch, I am unable to accept and therefore must reject the concept that an assurance that documents would not be made public “without the consent of the Subcommittee” is sufficient to provide the Executive the protection to which he is constitutionally entitled. While a congressional committee may disagree with the President’s judgment as regards the need to protect the confidentiality of any particular documents, neither a congressional committee nor the House (or Senate, as the case may be) has the right under the Constitution to receive such disputed documents from the Executive and sit in final judgment as to whether it is in the public interest for such documents to be made public.1 To the extent that a congressional committee believes that a presidential determination not to disseminate documents may be improper, the house of Congress involved or some appropriate unit thereof may seek judicial review (see Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)), but it is not entitled to be put in a position unilaterally to make such a determina- tion. The President’s privilege is effectively and legally rendered a nullity once the decision as to whether “public” release would be in the public interest passes from his hands to a subcommittee of Congress. It is not up to a congressional subcommittee but to the courts ultimately “ ‘to say what the law is’ with respect to the claim of privilege presented in [any particular] case.” United States v. Nixon, 418 U.S. at 705, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). I am unaware of a single judicial authority establishing the proposition which you have expounded that the power properly lies only with Congress to determine whether law enforcement files might be distributed publicly, and I am compelled to reject it categorically. The crucial point is not that your subcommittee, or any other subcommittee, might wisely decide not to make public sensitive informa- tion contained in law enforcement files. Rather, it is that the President has the constitutional responsibility to take care that the laws are faithfully executed; if the President believes that certain types of information in law enforcement files are sufficiently sensitive that they should be kept confidential, it is the President’s constitutionally required obligation to make that determination.2 1 Your November 8 letter points out that in my opinion of O ctober 13, 1981, to the President, 43 Op A tt’yG en ________, 5 Op. O L C . 27 (1981), a passage from the C ourt’s opinion in U ntied Slates v. Nixon, 418 U .S 683 (1974), was quoted in which the word “public'’ as it appears in the Court's opinion was inadvertently om itted. See 5 Op. O L C at 29 That is correct, but the significance you have attributed to it is not. The omission of the word "public" was a technical error made in the transcription of the final typewritten version of the opinion. This error will be corrected by inclusion of the word “public” in the official pnnted version of that opinion. However, the omission of that word was not material to the fundamental points contained in the opinion The reasoning contained therein rem ains the same As the discussion in the text of this letter makes clear, I am unable to accept your argum ent that the provision of documents to Congress is not, for purposes of the President’s executive privilege, functionally and legally equivalent to making the documents public, because the power to make the documents public shifts from the Executive to a unit of Congress Thus, for these purposes the result under U nited States v. Nixon would be identical even if the Court had itself not used the word “public” in the relevant passage 2 It was these principles that were em bodied in Assistant Attorney General M cConnell’s letters of O ctober 18 and 2 5 ,1 9 8 2 ,to you U nderthese principles, yourcriticism of M r M cConnells statements made in those letters must be rejected Mr M cConnell’s statements represent an institutional viewpoint that does not, and cannot, depend upon the personalities involved I regret that you chose to take his observations personally. 35 These principles will not be employed to shield documents which contain evidence of criminal or unethical conduct by agency officials from proper review. However, no claims have been advanced that this is the case with the files at issue here. As you know, your staff has examined many of the documents which lie at the heart of this dispute to confirm that they have been properly characterized. These arrangements were made in the hope that that process would aid in resolving this dispute. Furthermore, I understand that you have not accepted Assistant Attorney General M cConnell’s offer to have the documents at issue made available to the members of your subcommittee at the offices of your subcommittee for an inspection under conditions which would not have required the production of copies and which, in this one instance, would not have irreparably injured our concerns over the integrity of the law enforcement process. Your apparent rejection of that offer would appear to leave no room for further compromise of our differences on this matter. In closing, I emphasize that we have carefully reexamined the consistent position of the Executive Branch on this subject and we must reaffirm our commitment to it. We believe that this policy is necessary to the President’s responsible fulfillment of his constitutional obligations and is not in any way an intrusion on the constitutional duties of Congress. 1 hope you will appreciate the historical perspective from which these views are now communicated to you and that this assertion of a fundamental right by the Executive will not, as it should not, impair the ongoing and constructive relationship that our two respective branches must enjoy in order for each of us to fulfill our different but equally important responsibilities under our Constitution. Sincerely, W i l l i a m F r e n c h S m i t h 36 MEMORANDUM OPINIONS OF THE OFFICE OF LEGAL COUNSEL January 4, 1982, through December 30, 1982 Applicability of the Federal Advisory Committee Act to the Native Hawaiians Study Commission The Native Hawaiians Study Commission (Commission) was established to advise Congress, not the President or agencies in the Executive Branch, and is thus not subject to the Federal Advisory Committee Act (FACA). The Commission could become subject to the FACA if it were utilized to advise the President or agencies The Commission is not subject to the requirement of the Government in the Sunshine Act (GSA), which applies only to “ agencies” a majority of whose members are appointed by the President with the advice and consent of the Senate. The Commission is not an "agency” as that term is defined for purposes of the GSA, since it was created to undertake studies and not to exercise independent authority. Moreover, none of its members is appointed with the advice and consent of the Senate. January 4, 1982 MEMORANDUM OPINION FOR THE CHAIRMAN, NATIVE HAWAIIANS STUDY COMMISSION You have asked this Office to advise you whether the Native Hawaiians Study Commission (Commission) is subject to the requirements of the Federal Advi- sory Committee Act, Pub. L. No. 92-463, 86 Stat. 770, 5 U.S.C. App. (1976 & Supp. V 1981) (FACA), or the Government in the Sunshine Act, Pub. L. No. 94-409,5 U .S.C. § 552b (1976) (GSA). We conclude that the Commission is not subject to either Act. Our analysis of the FACA is somewhat extended because the language of the Commission’s authorizing act is not entirely clear, although its legislative history demonstrates Congress’ intent that the FACA not be applica- ble. We conclude that the Commission is not subject to the GSA because the Commission is not an administrative “ agency” as defined by that and other relevant statutes. I. Applicability of the Federal Advisory Committee Act The FACA imposes certain requirements on “ advisory committees” to the President or to federal agencies. The definition of an “ advisory committee” includes, in relevant part, any “ commission” that is “ established” by the President, an agency, or Congress “ in the interest of obtaining advice or recom- mendations for the President or one or more agencies or officers of the Federal 39 government.” 5 U.S.C. App. § 3.' The definition does not cover commissions that are established solely to advise Congress. Whether the Native Hawaiians Study Commission was “established” to advise the President or federal agencies or solely to advise Congress must be determined by reference to the Commis- sion’s authorizing act— the Native Hawaiians Study Commission Act (NHSCA).2 (A) NHSCA Text The text of the NHSCA does not indicate that Congress established the Commission to obtain “ advice or recommendations” for the President or federal agencies. The Commission’s relationship with the President, however, is suffi- ciently ambiguous to require a review of the NHSCA’s legislative history. The NHSCA directs the Commission to “ conduct a study of the culture, needs, and concerns of Native Hawaiians.” Section 303(a). The Commission is to publish “ a draft report of the findings of the study,” distribute the draft to “ appropriate” federal and state agencies, native Hawaiian organizations, and the interested public, and solicit their written comments. Section 303(c). The Com- mission is to issue a “ final report of the results of this study” and send copies to the President and to two congressional committees. Section 303(d).3 Finally, and most importantly, the NHSCA also directs the Commission to “ make recom- mendations to the Congress based on its findings and conclusions [from the study].” Section 303(e). There is no indication whatever, in the text or in the legislative history, that the NHSCA established the Commission to advise federal agencies. The Commis- sion does not make recommendations or submit its final report to any federal agencies. The fact that the Commission sends a draft report to “ appropriate” federal agencies for written comments suggests that it has the opposite rela- tionship— that it is required to obtain the agencies’ advice, rather than to advise agencies. Whether the Commission was established to obtain “ advice or recommenda- tions” for the President is a closer question because the President does receive a copy of the Commission’s final report. While this could imply a relationship for the transmittal of advice between the Commission and the President, it does not by itself make the Commission an advisory body to the President. First, the NHSCA draws a distinction between the Commission’s final report, which contains its factual “ findings,” and its “recommendations,” which are made 1 The FACA also covers com missions “ utilized” by the President or an agency “ in the interest of obtaining advice or recom m endations " 5 U S C. App § 3 T his aspect of the FACA’s definition of “ advisory com mittee” is discussed below 2 Pub L. No. 96-565, Title IH, 9 4 Stat. 3321, 3324-27 (1980).42 U.S C. § 2991a note (Supp V 1981). Senator M atsunaga introduced the NHSCA directly on the Senate floor as an amendment to an act “ to establish the Kalaupapa National Historical F^rk in the State of Hawaii, and for other purposes ” 126 Cong Rec. 32397 (1980) (K alaupapa Act) The House subsequently passed the Kalaupapa A ct with the Senate amendment 126 Cong Rec 32613 (1980). Title III of the Kalaupapa Acl is separately tilled the NHSCA. Because the NHSCA was introduced directly on the House and Senate floors, no com m ittee reports specifically addressed it ' The Com m ittees are the Senate Committee on Energy and Natural Resources and the House Committee on Interior and Insular Affairs 40 only to Congress and apparently forwarded separately. Merely sending a copy of the Commission’s report to the President would not seem to make the Commis- sion advisory to the President when its recommendations are made only to Congress.' Second, even if the final report itself could be characterized as “ advice,” it is unclear that such advice is really for the President where other factors and the underlying purpose of the study indicate that the Commission was created to formulate policy recommendations to Congress for future legislation. That the President is to receive a copy of the study, perhaps simply as a courtesy or for his general information, does not mean the study was intended to “ advise” him. Thus, while the language of the statute itself is far from a clear indication that the Commission was intended solely to advise Congress, it does not support the contention that it was established to advise the President. Two other provisions in the NHSCA indicate at least indirectly that the Commission was not established to advise the President. The first provision, § 303(b), establishes a modest open meeting “ goal” for the Commission. This provision would be redundant if the requirements of the FACA were applicable. Section 303(b) states: The Commission shall conduct such hearings as it considers appropriate and shall provide notice of such hearings to the public, including information concerning the date, location, and topic of each hearing. The Commission shall take such other actions as it considers necessary to obtain full public participation in the study undertaken by the Commission. 42 U.S.C. § 2991a note (Supp. V 1981). If Congress had intended the Com- mission to be covered by the FACA, notice of each meeting would ordinarily have to be published in the Federal Register, the meeting would have to be open to the public, and interested persons would have the right to appear before the Commis- sion or to file statements. See 5 U.S.C. App. § 10. Congress’ inclusion of the much more modest provisions of § 303(b) in the NHSCA indicates that it did not believe that the Commission would be subject to the FACA. The second provision, § 307(a), provides: Until October 1, 1981, salaries and expenses of the Commission shall be paid from the contingent fund of the Senate upon vouch- ers approved by the Chairman. To the extent that any payments are made from the contingent fund of the Senate prior to the time appropriation is made, such payments shall be chargeable against the authorization provided herein. 42 U.S.C. § 2991a note (Supp. V 1981). This reveals that Congress considered the Commission sufficiently close to the Legislative Branch to fund its activities up to October 1, 1981, from the contingent fund of the Senate. It also suggests that Congress believed the Commission would not be funded from any appropria- tions for the Executive Branch, as would normally be available for advisory committees to the Executive Branch. 41 In summary, the language of the NHSCA does not support the conclusion that Congress established the Commission to obtain advice or recommendations for the President. Moreover, the moderate “open meeting” provision and the manner of funding seem to suggest that the Commission was closely tied to Congress and not intended to be subject to the FACA.4 These indications are not necessarily conclusive, however, because the President is to receive a copy of the Commis- sion’s final report. Because this might indicate the existence of a reporting relationship with the President, we turn to a review of the NHSCA’s legislative history. (B) Legislative History cf the NHSCA Three aspects of the NHSCA’s legislative history strongly support the con- clusion that Congress did not establish the Commission to advise the President. These include: (i) comments by the sponsors of the NHSCA that the Commission was to advise Congress; (ii) the existence of two predecessor bills seeking to establish an advisory commission to Congress; and (iii) the circumstances in which a Senate committee first added to a predecessor bill the requirement that the President should receive a copy of the Commission’s report. (i) Floor comments of the NHSCA’s sponsors When NHSCA’s two sponsors introduced the bill on the House and Senate floors in the 96th Congress, they characterized the Commission as an advisory committee to Congress without ever mentioning that it would have any rela- tionship with the Executive Branch. Senator Matsunaga stated that the NHSCA provides for a study of the Native Hawaiians by an unbiased Federal Commission composed primarily of non-Hawaiians, and it would require the Commission to report its findings to Con- gress. If, at that time, the Congress determines that further action is necessary, perhaps a settlement act would be introduced as it was in the case cf Alaskan Natives. 126 Cong. Rec. 32399 (1980) (emphasis added). In similar fashion, Representa- tive Phillip Burton noted: Mr. Speaker, it is my sincere hope that 2 years from now, the findings and recommendations from this commission, relative to the past and current problems now facing the Native Hawaiian population in the State of Hawaii and elsewhere, will be such that it will establish a base upon which the Congress can then decide 4 The presidential power over the appointment of Commission members under the NHSCA might be said to support a contrary view The President appoints the members of the Com m ission, designates its chairman and vice chairm an, fills all vacancies, and calls the first meeting. Sections 302(b), (c), (d), (e). The fact that the President appoints the m em bers, however, does not bear directly, as an analytical matter, on the question regarding the functions the Com m ission members are to perform once they are appointed 42 on the best possible approach to assist the Native Hawaiians. Mr. Speaker, the Native Hawaiians definitely need help, and after holding hearings last year in Hawaii on this legislation, I am convinced more than ever of the need to establish this commis- sion; and I might add that the Congress does have a responsibility to these people. 126 Cong. Rec. 32613 (1980) (emphasis added). Thus, the bill’s two sponsors described the Commission as a body to advise Congress and never indicated that it would have an advisory relationship with the Executive Branch.5 (ii) Predecessor bills The legislative history further reveals that the two predecessor bills to the NHSCA in the two prior Congresses— S.J. 155,94th Cong., 2d Sess. (1976) and S.J. Res. 4, 95th Cong., 1st Sess. (1977)— each had sought to establish a commission specifically to advise Congress. The first bill, S.J. 155, was introduced in the 94th Congress by Senator Inouye to establish an Hawaiian Native Claims Settlement Study Commission.6 The commission was to conduct a study of “ the nature of the wrong committed against . . . Hawaiian Natives” when the United States allegedly caused the expropriation of their ancestors’ land in 1893.7 The proposal for this commission represented an alternative to another bill introduced by (then) Representative Matsunaga to establish a corporation to settle Hawaiian claims for the losses.8 Because of congressional opposition to a claims settlement procedure, Senator Inouye’s bill sought to establish a commission which, according to its preamble, “ should be convened to advise the Congress on all matters pertaining to such remedy.”9 In the 95th Congress, Senators Inouye and Matsunaga introduced the second predecessor bill, S.J. Res. 4, which was identical to the draft of S.J. Res. 155 reported out of the Senate Committee on Interior and Insular Affairs in the 94th Congress. Like S.J. 155, the preamble to S.J. Res. 4 stated that the commission was intended specifically to advise Congress. It stated: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the Con- gress hereby declares that a wrong has been committed against the Aboriginal Hawaiians which the United States is obligated to endeavor to remedy; . . . that the Congress wishes to establish a commission of Aboriginal Hawaiian and other citizens to advise it 5 The brief legislative history of the NHSCA does not indicate that the President requested establishment o f the Commission The Executive Branch did not participate in the drafting of the proposed legislation to create it. 6 S J Res. 155, 94th Cong , 2d Sess (1976) 7 S J. Res 155, reprinted in S Rep No 1356, 94th Cong., 2d Sess. 2-3 (1976). 8 H R. 1944, 94th Cong , 1st Sess (1975) Representative Matsunaga had introduced a similar bill in the 93rd Congress, H R 15666. 93rd C ong., 2d Sess. (1974). 9 S J. Res 155, reprinted in S Rep. No 1356, 94th Cong., 2d Sess. 2 (1976). 43 on all matters pertaining to the best manner in which to provide such remedy. S.J. Res. 4, 95th Cong., 1st Sess., 123 Cong. Rec. 34541 (1977) (emphasis added). The Senate and House Committee Reports10 and floor comments on the bill" also clearly indicated that the commission was specifically established to advise Congress.12 Against this consistent history demonstrating Congress’ desire to create a commission to advise it regarding the Native Hawaiians, there was no indication when Congress passed the NHSCA in the 96th Congress that it also intended to make the proposed Commission advisory to the President.13 When introducing the NHSCA, Senator Matsunaga explained that he had deleted various provisions of its predecessor, S.J. Res. 4, simply to assure that the Commission’s study would be objective. His comments did not reflect any intent to create an advisory committee to the President.14 (iii) The requirement that the Commission report be sent to the President Finally, the legislative history of S.J. Res. 4 sheds some light on the back- ground and significance of the requirement that the Commission send its report to 10 The Senate Report stated The Proposed Study Commission would submit a report o f its findings to the Congress and recom m end rem edies to repair the w rong perpetrated against the Aboriginal Hawaiian people. * * * By enactm ent of Senate Joint Resolution 4, the Congress would establish a procedure for determin- ing what, if any, action the Congress can lake to finally settle the claims o f the Aboriginal Hawaiians. The recom m endations submitted to the Congress by the Aboriginal Hawaiian Claims Settlement Study C om m ission cannot substitute fo r the Congressional determination, but are expected to assist the Congress in making that determination * * * Senate Joint Resolution 4 would establish [a commission] and ask it to conduct the study to provide the groundwork necessary fo r Congress to consider what, if any, settlement can be fashionedfor the Aboriginal Hawaiian people S. Rep N o 501, 95th C ong.. 1st Sess 5, 8, 9 (1977) (emphasis added). The House Committee Report reflects the sam e approach See H Rep. No. 860. 95th C ong., 2d Sess 1, 2, 5 (1978) 11 See 123 C ong. Rec. 34544 (1977) (rem arks of Sen Inouye), 124 Cong. Rec 15052 (1978) (remarks of Rep Roncalio), id at 15054 (rem arks of Rep H eftel), 124 Cong. Rec. 28496 (1978) (remarks of Rep Johnson), id at 28497 (rem arks of Rep Burton); id. at 28498 (remarks of Rep. Heftel) 12 S.J. Res. 4 was not enacted While the Senate passed S J Res 4. only a sim ple m ajontyofthe House members voted for its passage when it was twice brought to the floor. See 123 Cong Rec 34544 (1977); 124 Cong Rec 28505 (1978) The special rules under which it was brought to the House floor required a two-thirds vote 13 Senators M atsunaga and Inouye also introduced in the 96th Congress a bill that was identical to the version of S.J Res. 4 which passed the Senate in the 95th Congress See S 2131, 96th Cong., 1st Sess , 125 Cong Rec 35956 (1979). N o action was taken on the bill after it was referred to Comm ittee. Congressman Akaka also introduced a sim ilar bill, H R 5 7 9 1 ,96th C ong , IsiS ess (1979), which was referred to the House Committee on Interior and Insular Affairs See Hearings on H .R . 5791 Before the Subcomm. on National Parks and Insular Affairs c f the H ouse Com m on Interior and Insular Affairs, 96th C ong., 1st Sess (1979) 14 Senator M atsunaga's bill did delete the pream ble that had included the sentence stating that the Commission was established to advise Congress But this does not reflect any intent to change the advisory role of the C om m ission. First, as the Senator explained, he eliminated the pream ble because certain House members objected that it “ expressed [Congress’] sense that a w rong had been done to Hawaiians.” 126 Cong Rec 32399 (1980). He did not say that he intended to alter the Comm ission’s advisory duties. Second, the Senator also amended S J Res 4 to require expressly that the Commission m akes its recom mendation to Congress. S J Res 4 had not specified to w hom the recom m endations were to be made, although they were to have been contained in the Report See S J Res 4, § 4, reprinted in S. Rep. N o 501, 95th C ong , 1 st Sess 3 (1977) Thus, even though the Senator removed the paragraph specifically identifying the Commission as advisory to Congress, he added the requirement that the Com m ission should make its recommendations only to Congress. These facts are inconsistent with the conclusion that elim ination of the pream ble was intended to make the Comm ission advisory to the President 44 the President. As originally introduced by Senators Inouye and Matsunaga, S.J. Res. 4 required the Commission to submit its report, including recommenda- tions, to Congress.15 The Senate Committee on Energy and Natural Resources amended the bill to direct the Commission, among other things, to send a copy of its report to the President.16 Although the Committee Report did not comment on this change, it clearly indicated that the purpose of the Commission was to advise Congress.17 The subsequent floor comments appear to confirm this interpreta- tion,18 and there is no indication that the change was intended to make the Commission advisory to the President. (C) Conclusion In light of these clear indications from NHSCA’s legislative history that the Commission was created to advise the Congress and not the President or federal agencies, we conclude that it is not subject to the FACA. The Commission members should be aware, however, that the Commission could become subject to the FACA, despite the fact that it was not “ established” to advise the President or federal agencies, if it is so “ utilized” by the President or an agency. 5 U.S.C. App. § 3. We are currently aware of no information, however, indicating the Commission has been or is being utilized in this capacity. II. Applicability of the GSA You have also asked us to determine whether the Commission is subject to the Government in the Sunshine Act (GSA), which requires that certain meetings of agencies that fall within its coverage “ be open to public observation.” 5 U.S.C. § 552b(b). The GSA applies, absent special exemptions, to any agency, as defined in section 552(e) of this title [the Freedom of Information Act’s definition], headed by a collegial body composed of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency. 5 U.S.C. § 552b(a)(l). The Commission does not fall within this definition for two reasons. First, none of its members are appointed to the Commission with the advice and consent of the Senate. The NHSCA only provides that members be appointed by the President. 15 S J Res. 4, § 3, reprinted in Hearings on S J Res 4 and H J Res. 526 Before the Subcomm on Public Lands and Resources c f the Senate Comm on Energy and N atural Resource's and the Subcomm. on Indian Affairs and Public Lands c f the H ouse Comm on Interior and Insular Affairs. 95th Cong.. 1st Sess. 18-21 (1977) l6S Rep No 501, 95th C ong., 1st Sess 3 (1977) 17 See note 10, supra 18 See note 11, supra 45 Second, the Commission is not an agency as that term has been used under the Freedom of Information Act, 5 U.S.C. § 552(e) (FOIA), whose definition the GSA expressly incorporates. The FOIA defines “ agency” as follows: For purposes of this section, the term “ agency” as defined in section 551 (1) of [the Administrative Procedure Act] includes any executive department, military department, Government corpo- ration, Government controlled corporation, or other establish- ment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(e). The FOIA thus incorporates the Administrative Procedure Act (APA) definition of “agency,” with several additions that are not relevant here. The APA defines “ agency,” in relevant part, as “ each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1). This definition has been judicially construed to require that an Executive Branch entity, to be deemed an “ agency,” must have “ substantial independent authority in the exercise of specific func- tions,” Soucie v. David, 448 E 2d 1067, 1073 (D.C. Cir. 1971), or the “ authority in law to make decisions,” Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974), cert, denied, 421 U.S. 963 (1975). Such tests cannot normally be met by a committee that merely gives advice because its chief function is only to make recommendations, not to act upon them or to exercise independent authority. See Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D.D.C. 1975); Gates v. Schlesinger, 366 F. Supp. 797, 799 (D.D.C. 1973). As we have already indicated, the legislative history of the Commission indicates that it was created to undertake studies and to make recommendations, not to “ exercise independent authority.” Thus, in our view, the Commission is not an “ agency” as that term is defined by the APA and the FOIA, and adopted by the G SA .19 In short, we conclude, based on the language and legislative history of the legislation creating the Commission, that it is neither an “advisory committee” for purposes of the FACA nor an “agency” for purposes of the GSA. It is therefore not subject to the requirements of either statute. T h e o d o r e B . O l s o n Assistant Attorney General Office o f Legal Counsel 19 The NHSCA provides that the Commission may “ secure directly from any department or agency of the United States inform ation necessary to enable it to carry out this title . . and may use the United States mails in the same m anner and upon the same conditions as other departments and agencies of the United States.” Section 302(j) & (k) There is no indication from this oblique reference that Congress intended to create the Commission as an “ agency.” In any event, the definition of an agency under the G SA is functional, and Congress clearly did not intend to em power the Com m ission to exercise functions that would bring it within the G SA ’s definition of an “ agency” 46 MEMORANDUM OPINIONS OF THE OFFICE OF LEGAL COUNSEL January 4, 1982, through December 30, 1982