In this case, the purpose of protection against the chilling The court next turned to the question of whether the Speech or Debate Clause privilege in this case was absolute or qualified. While admitting that the legal precedents relating to the use of the privilege in Federal criminal, as opposed to civil, proceedings were not consistent, Judge Peckham reasoned that "all courts confronting the Speech or Debate privilege have insisted upon an extremely strong showing that the information sought by the defendant is likely to be material and exculpatory." [Id. at 4] Without such a strong showing, the judge noted, there would be no reason to assume that the evidence sought might not be damaging to the defendant, duplicative, or simply irrelevant. In determining whether to order a coordinate branch of government to produce confidential material in the face of an asserted privilege, Judge Peckham said, the court must therefore take great care to assure that the materiality and relevancy standards of Rule 17 are met. He concluded: In the instant case, there is no showing that the information in the confidential section of the report would not merely duplicate matters already known to defense counsel, or be quite irrelevant or even damaging to the defendant. In view of the "meticulous care" with which we must apply the requirements of Rule 17 when confronted with this claim of privilege, see Nixon, supra, 418 U.S. at 709, we therefore find that there is an insufficient showing of relevance to justify issuance of the subpoena. [Id. at 5] Status-Although the criminal proceeding remains pending in the U.S. District Court for the Northern District of California, no further action regarding the Congressional subpoena is anticipated. The complete text of the July 10, 1981 memorandum of the district court is printed in the "Decisions" section of this report at page 416. XI. Congressionally Related Documents and the Freedom of Information Act Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency Nos. 79-2143 and 79-2022 (D.C. Cir.) In May 1978, the Holy Spirit Association For The Unification of World Christianity ("Church") filed a Freedom of Information Act ("FOIA") request with the Central Intelligence Agency ("CIA”) for disclosure of all CIA records relating to the Church or its members. The CIA located 63 documents falling within the request, including 15 documents which originated with the CIA but which consisted of information compiled in response to specific requests by Congress, and 35 documents which originated with committees of the House of Representatives and which were transmitted to the CIA. The CIA denied the Church's request for access to any of these 50 documents while releasing the 13 others in whole or in part. On January 12, 1979, the Church commenced suit under the FOIA in the U.S. District Court for the District of Columbia. In connection with its presentation to the court on the disposition of the 50 Congressionally-related documents, the CIA contacted the Clerk of the House and the pertinent committees involved to seek their views and guidance as to what the appropriate response should be. After consultation, the Clerk, on April 24, 1979, sent a letter to the CIA formally objecting to any disclosure of the 50 doc uments. After motions for summary judgement had been filed by both the CIA and the Church, the court, on July 30, 1979, issued its decision. [Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, Civ. No. 79-0151 (D.D.C. July 30, 1979)] The court held that 46 of the 50 Congressionally-related documents were not agency records; they were subject to Congressional control and therefore were exempt from disclosure under 5 U.S.C. § 551(1)(A)(1976). On September 24, 1979, the Church filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Because the district court had ruled that 4 of the 50 Congressionally-related documents were subject to disclosure, as were portions of 13 other, non-Congressionally-related documents, the CIA also appealed the district court's ruling. The two appeals were subsequently consolidated by the circuit court. On May 5, 1980, the Clerk of the House filed a motion for leave to submit a brief amicus curiae supporting the lower court ruling. Although the Church formally opposed the Clerk's amicus motion, it was granted by the court, as was a motion by the Clerk to participate in oral argument which was held on September 9, 1980. In its appellate brief, the Church asserted that the 35 documents generated by Congress and transferred to the CIA were not exempt from disclosure because, unlike the situation in Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978) (see page 223 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), Congress in the instant case had not indicated to the CIA, at the time it transferred the documents to the agency, that the documents were to remain secret. As for the Clerk's April 24, 1979 letter, the Church contended that it could not be probative of Congressional intent because it was written after this lawsuit was commenced. Turning to the 15 documents created by the CIA pursuant to Congressional requests, the Church stated that the district court had improperly held that 11 of these documents were Congressional records because they were created at the specific request of Congress. (The district court had held that four of the 15 documents were merely inter- or intraagency records and therefore subject to disclosure.) Once again, the Church alleged that the failure of Congress to indicate, upon returning the 11 documents to the CIA, that the documents were to remain secret precluded a finding that the 11 documents were Congressional records. In response, the CIA asserted that all 50 Congressionally-related documents were transferred to the CIA by Congress solely for the purpose of safekeeping and therefore constituted Congressional records. In addition, the CIA argued that Goland did not require Congress to issue contemporaneous instructions when transferring documents to an agency. Thus, said the CIA, the April 24th letter to the Clerk constituted conclusive evidence that all 50 documents were Congressional documents and therefore exempt from disclo sure. In his amicus brief, the Clerk reiterated the arguments put forth by the CIA and made the additional argument that releasing documents created by Congress, or created by an agency at Congress' specific request, would violate the Speech or Debate Clause of the U.S. Constitution 1 by revealing the deliberative processes of Members of Congress. 1 On December 23, 1980 the circuit court issued a decision reversing the decision of the district court and remanding the case for further consideration. [Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980)] In an opinion delivered by Circuit Judge Abner Mikva, the court held that Congress had failed to express with sufficient clarity its intent to retain control over the 50 documents in question. Accordingly, the court ruled that the 50 documents were not Congressional documents and therefore were not exempt from FOIA disclosure under 5 U.S.C. § 551(1)(A). Turning first to the 35 documents created by Congress and sent to the CIA, the court stated that in Goland it had enumerated two factors dispositive of whether a Congressionally-generated document remained a Congressional document: the circumstances attending the document's creation and the conditions under which it was transferred to the agency. As to the first factor, Judge Mikva stated: The hearing transcript at issue in Goland was quite obviously meant to be secret: the congressional committee met in executive session to conduct the hearing; the stenographer and typist were sworn to secrecy; and the transcript was marked "Secret." In addition, the confidential nature of the transcript was evident-it was known to contain "discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA's structure and disposition of functions." 607 F.2d at 347 (footnote omitted). [636 F.2d at 841] "In contrast," said the court, "the circumstances surrounding Congress' creation of the documents requested by the Church do not demonstrate any intent that they be kept secret." [Id.] Regarding the second prong of the Goland test, the court stated that because the Clerk's letter was written after the Church's FOIA request had been made and after litigation had begun it did "not consider the The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House [U.S. Senators and Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] [Clerk's] letter sufficient evidence that Congress forwarded the documents to the Agency only 'for a limited purpose and on condition of secrecy.' Goland, 607 F.2d at 348 n. 48." [Id. at 842] However, the court specifically rejected the Church's contention that Congress must give contemporaneous instructions when forwarding Congressional documents to an agency. The proper test, said the court, is whether Congress at some point made "some clear assertion of congressional control." [Id.] Next, the opinion addressed the issues raised by the 11 documents created by the CIA pursuant to Congressional requests. The court cautioned that in resolving these issues it would not address the question of whether agency-created records, when sent to Congress, can lose their status as agency records and become exempt from FOIA disclosure. "Instead," said the court, "we hold that, even if these CIA-created records were once congressional docuthey subsequently lost their exemption as congressional records when Congress failed to retain control over them." [Id. at 843] The court explained: Again, we rely on the two-pronged Goland test. As with the congressional records analyzed above, there is no evidence surrounding the generation of these CIA-created records indicating that Congress intended that they remain secret. The conditions under which they were transferred back to the CIA are similarly ambiguous: they were merely returned to the Agency with no accompanying letter or instructions. Appellees again point to the post hoc letter from the Clerk of the House, but, for the reasons discussed above, we find that letter insufficient evidence of Congress' intent to retain control over these documents. [Id.] The court did not address the Speech or Debate Clause arguments raised by the Clerk of the House. On December 30, 1980, the CIA requested an extension of time within which to petition for a rehearing of the case. The court granted the motion in part, and on January 20, 1981, the CIA submitted its petition for rehearing with a suggestion for rehearing en banc. The petition vigorously attacked the appeals court panel decision both as to 6 classified documents that had been ordered disclosed (the subject of the CIA's cross appeal) and as to the 35 Congressionally-related documents. Regarding the panel's decision on the CIA's cross appeal, the petition argued that it did "not comport with the standards of responsible de novo review, is internally inconsistent, conflicts with precedent of this circuit, and creates a Constitutional conflict between the judiciary and executive." [Petition for Rehearing with Suggestion for Rehearing en banc, January 20, 1981, at 6] The petition took particular issue with the failure of the panel to accept the CIA's argument that the district court had not accorded substantial weight to the CIA's affidavits supporting the documents' nondisclosure: The action of the district court in ordering the release of information which the Agency explained will damage na tional security and expose intelligence sources and meth- The petition further contended that the failure of the district court to explain the disclosure order or to specify any deficiencies in the CIA affidavits was wrong and was compounded by the failure of the appeals court panel to conduct its own review: The panel's failure to conduct its own review of these 6 documents exacerbates the constitutional tension created by the district court's failure to comply with Congressional intent. The panel did not and could not find that the district court accorded substantial weight to the affidavits because the panel never considered the CIA's substantive claim that the information is properly exempt. Nor did the panel address the constitutional question inherent in the district court's order to release information determined by the executive branch to be properly classified. [Id. at 9] Turning to the 35 Congressionally-related documents, the petition maintained that the "panel's reversal of the district court's finding that Congress intended to preserve the secrecy of the Congressionally originated documents was made on the basis of an incomplete and distorted review of the record and jeopardizes the relationship between Congress and the CIA." [Id. at 12] The petition was especially critical of the panel's failure to conduct an in camera review of the documents (as the district court had done), and asserted that the panel "misconstrued or ignored every item of evidence in the record" [Id. at 14] in concluding that Congress evidenced no intent to retain control over the records. Finally, the petition argued that: The 35 documents not only reflect sensitive intelligence activities and sources, matters of concern to both the CIA and Congress, they also reflect legislative deliberations and functions, matters which Congress specifically has exempted from the FOIA. By holding that Congress cannot rely on its understanding of confidentiality with the CIA, the panel places in jeopardy the continued cooperation and exchange of information between these two entities. [Id.] In an order filed on August 13, 1981, the circuit court panel denied the petition for rehearing. Senior Circuit Judge David Bazelon appended a statement in support of granting a rehearing in the CIA's cross appeal, contending that the "district court should have offered some explanation for its partial rejection of cross-appellant's national security exemption claim, 5 U.S.C. § 552(b)(1)(a) |