interpreted those statutes in a way that is consistent with Defendants' interpretation of Section 552(d) -- under those statutes, individual Members of Congress have only the same rights as members of the general public. See Defendants' Memorandum at 22-23 (citing Swenson v. U.S. Postal Serv., 890 F.2d 1075, 1077 (9th Cir. 1989); Exxon Corp. v. FTC, 589 F.2d 582, 592-94 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979))." Thus, the point is that the case law under those analogous statutes supports Defendants' interpretation of Section 552(d), that individual Members of Congress have no greater rights of access to information under FOIA than any other person. The Opposition does not address, much less refute, that argument." THE ADMINISTRATIVE PROCEDURE ACT CLAIM SHOULD BE DISMISSED.

III.

A.

A Discretionary Decision To Withhold Exempt Documents Is Not Properly Reviewable
Under The APA Unless There Are Statutory Or Regulatory Restrictions On The
Agency's Discretion.

The Opposition argues that "the law in this Circuit is settled that, even when FOLA exemptions apply, the agency's decision to withhold the requested documents is reviewable for abuse of discretion." Opposition at 25, citing Mead Data Central, Inc. v. U.S. Air Force, 566

17 Although Rep. Leach's Complaint does not challenge the applicability of particular FOLA exemptions, he nonetheless argues in the Opposition that Exemption 4, which governs trade secrets and confidential commercial or financial information, cannot apply in this case because Madison "is no longer in business." Opposition at 24 n.11. A similar argument has been rejected by the D.C. Circuit. See Gregory v. FDIC, 631 F.2d 896, 899 (D.C. Cir. 1980) (relying on "plain meaning of the statutory exemption [8]," court held banking records were exempt from disclosure even though bank was closed).

" Defendants also have argued that Murphy is distinguishable from this case because, unlike the information at issue in Murphy, which was covered solely by FOIA, some of the information requested by Rep. Leach, in addition to being exempt under FOIA, is also covered by other federal statutes, such as the Privacy Act and Trade Secrets Act. As to the information covered by those statutes, under which protected information must be withheld, Defendants are precluded from exercising their discretion to release the information under FOIA. See Defendants' Memorandum at 31 n.19. Contrary to Rep. Leach's assertion, however, Defendants have not relied on those statutes as an independent basis for withholding the documents, but as a factual distinction from Murphy.

F.2d 242 (D.C. Cir. 1977). That assertion mischaracterizes Mead, and ignores the subsequent decisions of the Supreme Court and the D.C. Circuit.

As the Supreme Court noted in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), APA review is not available where "agency action is committed to agency discretion by law."" Id. at 317 (quoting 5 U.S.C. § 701(a)(2)). Agency action is committed to agency discretion "where statutes are drawn in such broad terms that in a given case there is no law to apply. . . ." Id. In Chrysler, which involved an agency's decision to disclose exempt documents, the Court found APA review available because the Trade Secrets Act placed "substantive limits" on the agency's discretion. Id. The Court noted, however, that without the limitations on disclosure imposed by the Trade Secrets Act, "it would be difficult to derive any standards which might constitute 'law to apply."" Id. Thus, Chrysler makes it clear that APA review of an agency's decision whether to disclose exempt documents is not available unless there are substantive limits on the agency's discretion that would give the Court some "law to apply."

The law in the D.C. Circuit is fully consistent with Chrysler. In Mead, contrary to Rep. Leach's characterization, the D.C. Circuit simply held that an agency "is bound by its own regulations" if it "impose[s] upon itself a more liberal disclosure rule than that required by the FOLA." 566 F.2d at 258. In Mead, the agency's regulations provided that "even though a requested document or portion thereof falls within an exemption, it should nonetheless be disclosed 'unless it is also determined that a significant and legitimate Government purpose would be served by exercising the exemption."" Id. (quoting 32 C.F.R. § 806.23 (1976)). By contrast, in this case, neither the RTC nor the OTS have adopted rules that require greater

disclosure than FOIA itself. See 12 C.F.R. § 1615; 12 C.F.R. § 505; 31 C.F.R. § 1." Moreover, in Mead, the court also noted that, under FOLA, the decision whether to disclose exempt documents is left to agency discretion, and that courts "should not be quick to interpret the [agency's] regulation in derogation of the discretion which the FOIA has left to it." Id. at 259. Subsequently, in Miller v. Casey, 730 F.2d 773, 778 (D.C. Cir. 1984), the D.C. Circuit held that the agency's decision not to disclose certain exempt documents "cannot be reviewed by this court," stating that the agency head is free to "exercise his or her own discretion in deciding whether to grant access." Id.

In this case, unlike Mead, Defendants are not required by their own regulations to disclose exempt documents. The only "standards" Rep. Leach has identified as alleged limitations on Defendants' discretion in deciding whether to disclose the exempt documents are the Reagan Memorandum, the Clinton and Reno Memoranda, and Defendants' alleged "established custom" of providing exempt documents to the Ranking Minority Member. See Plaintiff's Memorandum at 23-25; Opposition at 25-33. However, neither the Memoranda nor the prior fact situations cited by Rep. Leach impose any legally binding limits on Defendants' exercise of their discretion in determining whether to disclose exempt documents under FOLA. Consequently, there are no legal standards to guide this Court in reviewing Defendants' exercise of their discretion.

19

To the contrary, the RTC disclosure regulations provide that "[n]othing in this part shall be construed to entitle any person. . . to the disclosure of any record to which the person is not entitled under 5 U.S.C. 552." 12 C.F.R. § 1615.10. Similarly, Department of Treasury rules, under which the OTS operates, provide that "a component of the Department of Treasury may, if not precluded by law, elect under the circumstances of [a particular] case not to apply [an] exemption." 31 C.F.R. § 1.2(5). The rules also provide that the "fact that the exemption is not applied by a component in that particular case will have no precedential significance in other cases." Id. (emphasis added).

The Opposition appears to argue that the 1982 Reagan Memorandum not only sets forth procedures for invoking executive privilege, but also waives any right to assert the interpretation of Section 552(d) that Defendants assert in this case, requiring Executive Branch agencies to comply with any and all Congressional requests for information unless the President himself decides to invoke executive privilege. See Opposition at 26. However, that argument ignores the express language of the Reagan Memorandum itself, which is plainly limited to circumstances in which executive privilege is invoked. Further, there is no evidence that the current administration has adopted any provisions of the Reagan Memorandum other than the procedures for invoking executive privilege. See Letter from W. Hubbell to Hon. J. Dingell at Attachment B (Ex. G to Plaintiff's Memorandum) ("The procedures for invoking executive privilege that are set forth in President Reagan's Memorandum of November 4, 1982 are still in effect."). Finally, Rep. Leach's "waiver" theory ignores the fact that in the 1984 FOLA Update, subsequent to the 1982 Reagan Memorandum, the Department of Justice expressly advised all Executive Branch agencies to take the very position Defendants are asserting in this case. See FOIA Update, Winter 1984 (Ex. L), at 3.20

Rep. Leach also argues that the Clinton and Reno Memoranda are "certainly much more" than policy statements. Opposition at 27. However, that argument completely ignores the statement in the Reno Memorandum that "this policy is not intended to create any substantive or procedural rights enforceable at law." Reno Memorandum (Ex. D to Plaintiff's Memorandum) at 2. Even without that express disclaimer, the law is well established that policy

20 Rep. Leach also argues that the Murphy decision "conclusively rejects" Defendants' position that the Reagan Memorandum is inapplicable in this case because Rep. Leach's request is not a "request from Congress" within the meaning of the Reagan Memorandum. See Opposition at 26. However, Murphy has no bearing on the proper interpretation of the Reagan Memorandum, because Murphy involved FOLA, and the Reagan Memorandum does not draw any connection to FOLA.

statements such as those contained in the Reagan Memorandum and the Clinton and Reno Memos are not legally binding. See Defendants' Memorandum at 34 and cases cited therein.21

Finally, the Opposition rehashes the argument that Defendants are legally bound by their alleged "established custom" of providing exempt documents to the ranking Minority Member. See Opposition at 31 (citing Plaintiff's Memorandum at 24-25). However, none of the cases cited by Rep. Leach in support of that argument are applicable here, because they did not involve disputes over documents under FOIA. A finding that an agency is bound by prior discretionary disclosures of exempt documents would be directly contrary to the D.C. Circuit's decisions in Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982), and Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978), and this Court's decision in Stone v. FBI, 727 F. Supp. 662, 666 (D.D.C. 1990) (Richey, J.), aff'd, No. 90-5065, 1990 WL 134431 (D.C. Cir. Sept. 14, 1990), discussed in Defendants' Memorandum at 39-40.

Rep. Leach asserts that requiring an agency to explain any deviations from its prior practice in disclosing exempt documents is "perfectly consistent" with Halkin and Stone. Opposition at 31. That assertion is simply wrong. In Halkin, the D.C. Circuit expressly stated that "[t]he precise circumstances of the disclosure in the [prior] case, however, need not concern us." 598 F.2d at 9. The court found that "[w]hether the disclosure [in the prior case] was

21 Contrary to the insinuation in the Opposition at 27 n. 13, the guidelines set out in the Reno Memorandum are not the reason that the Department of Justice has not appeared on behalf of the Defendants in this case. Rather, Defendants have never requested representation by the Department of Justice in this case. Both the RTC and OTS possess independent litigating authority, and normally represent themselves in litigation matters. 12 U.S.C. § 1464 (d)(1)(A) [OTS] and 12 U.S.C. § 1441a(w)(20) [RTC]. As a matter of course, OTS attorneys represent the OTS in litigation matters. The RTC is generally represented in litigation matters by RTC attorneys, along with outside counsel, not Department of Justice attorneys. Indeed, the RTC's outside counsel in this case has represented the RTC in a FOIA suit in the past. See Public Citizen, Inc. v. RTC, No. 92-0010 (D.D.C. Mar. 19, 1993). Thus, the absence of the Department of Justice from this lawsuit shows nothing.