United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2014 Decided May 23, 2014

No. 13-5127

CAUSE OF ACTION,

APPELLANT

v.

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01342)

Daniel Epstein and Marie A. Connelly argued the cause for

appellant. On the brief were Patrick J. Massari and Reed D.

Rubinstein.

Christine N. Kohl, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were Stuart

F. Delery, Assistant Attorney General, Ronald C. Machen Jr.,

U.S. Attorney, and Leonard Schaitman, Attorney. Edward

Himmelfarb, Attorney, entered an appearance. 

Kerry W. Kircher, General Counsel, William Pittard,

Deputy General Counsel, Christine M. Davenport, Senior

Assistant Counsel, and Todd B. Tatelman, Mary Beth Walker,

and Eleni M. Roumel, Assistant Counsel, were on the brief for
2

amicus curiae Bipartisan Legal Advisory Group of the United

States House of Representatives.

Before: HENDERSON and KAVANAUGH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: This is an appeal from

the judgment of the district court dismissing a complaint brought

under the Freedom of Information Act, 5 U.S.C. § 552. The

complaint sought, from the National Archives, records of the

Financial Crisis Inquiry Commission, a legislative branch

agency charged with investigating “the causes, domestic and

global, of the current financial and economic crisis in the United

States.” Fraud Enforcement and Recovery Act of 2009, Pub. L.

No. 111-21, § 5(a), 123 Stat. 1617, 1625.

The Commission, established in 2009, was to report its

findings and conclusions to Congress and the President on

December 15, 2010, and then terminate 60 days later. Id.

§ 5(h)–(i).1 Shortly before it disbanded, the Commission

transferred its records to the National Archives and Records

Administration. The Archives accepted the records pursuant to

its statutory authority to “accept for deposit with the National

Archives of the United States the records of a Federal agency,

the Congress, the Architect of the Capitol, or the Supreme

Court” when the Archivist determines those records to have

1

 The Commission’s Report was released to the public on January

27, 2011. See Press Release, Fin. Crisis Inquiry Comm’n, Financial

Crisis Inquiry Commission Releases Report on the Causes of the

Financial Crisis (Jan. 27, 2011), available at http://fcic-static.law.

stanford.edu/cdn_media/fcic-news/2011-0127-fcic-releases-report.pdf.
3

“sufficient historical or other value to warrant their continued

preservation.” 44 U.S.C. § 2107(1).2

FOIA requires most federal agencies to make their “agency

records,” 5 U.S.C. § 552(a)(4)(B), available to the public,

subject to several exceptions. See, e.g., Milner v. Dep’t of Navy,

131 S. Ct. 1259, 1261-62 (2011). “Agency,” in the FOIA

context, means “each authority of the Government of the United

States,” but the definition “does not include” Congress and

certain other governmental entities, such as the “courts of the

United States.” 5 U.S.C. § 551(1). As a result, FOIA “does not

cover congressional documents,” United We Stand Am., Inc. v.

IRS, 359 F.3d 595, 597 (D.C. Cir. 2004), or documents of

legislative branch agencies, see Wash. Legal Found. v. U.S.

Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994);

Ethnic Emps. of Library of Cong. v. Boorstin, 751 F.2d 1405,

1416 n.15 (D.C. Cir. 1985). The Financial Crisis Inquiry

Commission, established in the legislative branch, was therefore

not an “agency” subject to FOIA. Cause of Action v. Nat’l

Archives & Records Admin., 926 F. Supp. 2d 182, 185 (D.D.C.

2013). On the other hand, the National Archives and Records

Administration is an agency within the executive branch. 44

U.S.C. § 2102. As such, it is an “agency” subject to FOIA.

The issue in this case is whether the Commission’s records,

exempt from FOIA while the Commission produced, retained

2

 Beyond its § 2107 authority to preserve records with historical

value, the Archives accepts and stores documents from other federal

entities, including lower federal courts and agencies in all three

branches, in its Federal Records Centers. See 44 U.S.C. § 3103; 36

C.F.R. § 1232.10; About the Federal Records Centers, FED.RECORDS

CTR., http://www.archives.gov/frc/about.html (last visited May 2014).
4

and relied upon those documents,3

 became subject to FOIA

when the Commission turned its records over to the Archives.

I

In an early interpretation of the Freedom of Information

Act, the Supreme Court held that documents may be considered

“agency records”—a term not defined in the Act—if the

documents are created or obtained by an “agency” that receives

the FOIA request and are in that agency’s “control”—that is, in

“the agency’s possession in the legitimate conduct of its official

duties.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

144-45 (1989). Since Tax Analysts, some of our decisions have

considered “four factors to determine whether an agency

controls a document.” Judicial Watch, Inc. v. Fed. Hous. Fin.

Agency (Judicial Watch I), 646 F.3d 924, 926 (D.C. Cir. 2011). 

The factors are 

[1] the intent of the document’s creator to retain or

relinquish control over the records; [2] the ability of

the agency to use and dispose of the records as it sees

fit; [3] the extent to which agency personnel have read

or relied upon the document; and [4] the degree to

which the document was integrated into the agency’s

record system or files.

Id. at 926-27 (quoting Burka v. U.S. Dep’t of Health & Human

Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)).

But this test—sometimes called the Burka test, although

Burka was itself quoting a vacated opinion—is an uncertain

guide when “a governmental entity not covered by FOIA”

3

 Despite its exemption from FOIA the Commission released

many documents during its existence.
5

transfers records to a governmental entity that is covered.

Judicial Watch, Inc. v. U.S. Secret Serv. (Judicial Watch II), 726

F.3d 208, 221 (D.C. Cir. 2013). That is what occurred here. 

Three days before the Commission terminated, its Chairman

wrote to the Archivist of the United States stating that because

FOIA exempted the Commission, “FOIA will not apply to the

Commission records even after they are transferred” to the

Archives. The Chairman requested that the Archivist restrict

access to any Commission records not already publicly

accessible on the internet until February 13, 20164

—five years

from the date of the Commission’s shutdown. He also asked

that, during the five-year hold, the Archivist “conduct a

systematic review of the records that are not currently available

to the public with the goal of releasing as much information as

is allowable” in 2016. The next day, February 11, 2011, the

records were transferred.

In October 2011, Cause of Action (then the Freedom

Through Justice Foundation) submitted a FOIA request to the

Archives requesting certain Commission records. The request

asserted that the “records under [the Archives’] control are

subject to disclosure under FOIA.” The Archives denied the

request, first in December 2011, then again in February 2012 on

4

 When the head of an agency deposits records in the Archives,

he may request in writing that access restrictions be placed on the

records. 44 U.S.C. § 2108(a). If the Archivist agrees that the

limitations are “necessary or desirable in the public interest,” he must

uphold them. Id. But the restrictions must be “consistent with FOIA.” 

36 C.F.R. § 1235.30(a). So if the records are “agency records,”

FOIA’s access provisions prevail over any inconsistent restrictions

requested by the transferor. Id. If the agency that requested the

restrictions has ceased to exist, and there is “no successor in function,”

the Archivist is empowered to relax (or otherwise change) the

restrictions to serve “the public interest.” 44 U.S.C. § 2108; see 36

C.F.R. § 1235.32.
6

Cause of Action’s administrative appeal. The Archives did not

dispute its own status as a FOIA-covered agency. But it

maintained that because the Commission was established in the

legislative branch, Commission records held by the Archives

were not agency records subject to FOIA. Transferring the

records to the Archives’ custody, the Archives concluded, was

not “dispositive of the FOIA access question.”

The district court applied the four-factor Burka control test. 

Cause of Action, 926 F. Supp. 2d at 187-89. Finding that three

of the four factors weighed in favor of the Archives, the court

held that the Commission’s records were “not agency records

subject to FOIA” and granted the Archives’ motion to dismiss. 

Id. at 184, 189.

II

The National Archives serves as a repository for the federal

government, including Congress5

 and legislative branch

agencies. Some of those legislative agencies are permanent. 

The Congressional Budget Office and the Government

Accountability Office are two of the most well known. 

Temporary legislative commissions also deposit their records

5

 At the close of each Congress, non-current records of the

Congress are transferred to the Archives “for preservation, subject to

the orders of the House of Representatives and the Senate,

respectively.” 44 U.S.C. § 2118. The records of Congress, including

committees and subcommittees of the House and Senate, “remain the

legal property” of those bodies. Congressional Records, NAT’L

ARCHIVES, http://www.archives.gov/legislative/research (last visited

May 2014); see Rules of the House of Representatives, H.R. Doc. 111-

157, 111th Cong., R. VII § 2 (2011); see also S. Res. 474, 96th Cong.

(1980). Both the House and the Senate have detailed rules stating

when records so delivered may be made public.
7

with the Archives before they go out of existence, as the

Financial Crisis Inquiry Commission did in this case.

The Archives, supported by amicus Bipartisan Legal

Advisory Group of the U.S. House of Representatives, which

represents the House’s institutional position in litigation, argues

that when a legislative commission transfers its records to the

National Archives, the FOIA status of those records is not

altered. In other words, a document subject to FOIA before the

Archives received it remains subject to FOIA after it arrives; a

document exempt from FOIA before the Archives received it

remains exempt after it arrives. The Commission’s records,

when created in the legislative branch, were not subject to

FOIA. According to this argument, they remained exempt after

the Commission deposited them with the Archives.

Although we have never explicitly held that transferring a

document to the Archives does not affect the document’s FOIA

status, we suggested as much in Katz v. National Archives &

Records Administration, 68 F.3d 1438 (D.C. Cir. 1995). There,

we considered whether autopsy photographs of President

Kennedy that had been transferred to the National Archives

were agency records subject to FOIA. Id. at 1440. We held

they were not, in part because they were “personal presidential

materials when they were first created, and therefore at no time

were they ever agency records.” Id. at 1441. In other words, the

depositing of these materials with the Archives did not convert

them into “agency records” subject to FOIA.

The regulations of the Archives reflect Katz’s reasoning.

One regulation is entitled, “Does FOIA cover all of the records

at [the Archives]?” 36 C.F.R. § 1250.6. “No,” it answers,

“FOIA applies only to the records of the executive branch . . ..” 

Id. “If you want access to” records of Congress or the federal

courts, the regulation explains, “FOIA does not apply.” Id. The
8

regulation then points the researcher to other regulations

governing access to the FOIA-exempt records. See, e.g., 36

C.F.R. pt. 1256 (Access to Records and Donated Historical

Materials); id. pt. 1270 (Presidential Records).

Cause of Action argues that rather than relying on Katz, we

should decide this case using the four-factor Burka test, a test

intended to determine whether the FOIA-covered agency had

control over the documents. “Control” became a consideration

in FOIA cases as a result of the need to distinguish agency

records from “personal materials in an employee’s possession,

even though the materials may be physically located at the

agency.” Tax Analysts, 492 U.S. at 145 (discussing Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155-

57 (1980)). If the agency did not control the material, the

Supreme Court held, the material was not an “agency record.” 

We have questioned whether the Burka test is helpful in

delineating that distinction. “Our past application of the test

reveals its considerable indeterminacy.” Judicial Watch II, 726

F.3d at 220. In any event, applying the test in this case is

particularly problematic because documents deposited with the

National Archives do not present the sort of questions the Burka

test purports to answer.

As applied to the Archives, the four-factor test is divorced

from FOIA’s key objective—revealing to the public how federal

agencies operate. See Judicial Watch I, 646 F.3d at 927. Take

for example the third and fourth Burka factors. Factor (3) is “the

extent to which agency personnel have read or relied upon the

document.” Id. (internal quotation omitted). Factor (4) is “the

degree to which the document was integrated into the agency’s

record system or files.” Id. (internal quotation omitted). The

third and fourth Burka factors make these inquiries because

relied-upon and catalogued documents may be expected to

reveal something “about agency decisionmaking”—“agency”
9

here referring to the Archives, not the Commission. Id. at 928. 

But with respect to the Archives, these inquiries are entirely

otiose.

In order to catalog and file documents delivered from

Congress or, for example, the Supreme Court, archivists review

the documents and make preservation decisions. We may

assume that, once those decisions are made, the records are

“integrated” into the Archives’ “files.” But those typical

archival functions—common to every record in the Archives—

do not suddenly convert the records of a defunct legislative

commission into “agency records” able to expose the operations

of the Archives “to the light of public scrutiny.” Dep’t of Air

Force v. Rose, 425 U.S. 352, 372 (1976).

Given the difficulties with the Burka test, we have

“indicated that the standard, four-factor control test does not

apply to documents that an agency has either obtained from, or

prepared in response to a request from, a governmental entity

not covered by FOIA.” Judicial Watch II, 726 F.3d at 221. As

we said in Bureau of National Affairs v. U.S. Department of

Justice, when “documents originate within the Congress, the

judiciary, and FOIA-exempt executive agencies, sometimes

special policy considerations militate against a rule compelling

disclosure of such records merely because such documents

happen to come into the possession of [a FOIA-covered]

agency.” 742 F.2d 1484, 1491-92 (D.C. Cir. 1984) (alterations

and internal quotation marks omitted). In this line of cases, we

have analyzed only the transferring entity’s intent to control the

documents and their future use. “This focus renders the first two

factors of the [Burka] test effectively dispositive.” Judicial

Watch II, 726 F.3d at 221.

Although we, too, will not use the Burka test, we do not

think it makes sense to apply the analysis from Judicial Watch
10

II and the cases discussed in that opinion to the National

Archives. Like the four-factor test, the Judicial Watch II test

also measures “control” in a way that is foreign to the sui

generis nature of the Archives.

In order for a document to be considered an “agency

record,” there must be some relationship between the record and

the FOIA-covered agency. This relationship has been described

as one of “possession” or “control.” E.g., Kissinger, 445 U.S. at

155. And we have looked to possession and control because,

often, these concepts capture the nature and use of a document

as it changes hands among federal agencies. See, e.g., Tax

Analysts, 492 U.S. at 146-47; Judicial Watch II, 726 F.3d at

221-23. Not so here.

The main function of the Archives is to preserve documents

of enduring value from all three branches of government.6

 The

Archives does not use documents created in the three branches

in any operational way, or indeed in any way comparable to any

other federal agency. It may control them in a sense, but its

control consists in cataloguing, storing, and preserving, not

unlike a “warehouse.” See Ann H. Wion, The Definition of

“Agency Records” Under the Freedom of Information Act, 31

STAN. L. REV. 1093, 1111 (1979).7

 Variances in this sort of

6

 The documents may come from any of the three branches of

government or, as in Katz, from private parties as a donation. See 44

U.S.C. § 2111(2).

7

 And if a particular document originated with a FOIA-covered

entity, the Archives’ responsibilities include disseminating the

document pursuant to a lawful FOIA request. Cf., e.g., Morley v. CIA,

508 F.3d 1108, 1113 (D.C. Cir. 2007). The Archives regularly grants

FOIA requests for FOIA-covered records. See NAT’L ARCHIVES,

FISCAL YEAR 2012: ANNUAL FOIA REPORT, available at http://www.

archives.gov/foia/reports/2012.pdf.
11

“control” are entirely unhelpful in determining a record’s value

to a FOIA requester, see Judicial Watch I, 646 F.3d at 928 (“[A]

document that could not reveal anything about agency

decisionmaking is not an ‘agency record.’”), and irrelevant to

any withholding prerogative that may remain with the transferor,

see Judicial Watch II, 726 F.3d at 221.

Ultimately we are dealing with a question of statutory

interpretation and congressional intent. See Kissinger, 445 U.S.

at 154; Judicial Watch II, 726 F.3d at 225. FOIA does not

define “agency records,” but we are confident that Congress did

not intend to expose legislative branch material to FOIA simply

because the material has been deposited with the Archives. Yet

that would be the consequence of what Cause of Action

proposes.

Affirmed.