National Security Council claims it is not subject to FOI Act

WASHINGTON, D.C. — National Security Council executive secretary William Itoh in late March directed the agency’s records management chief William Leary to revoke NSC’s Freedom of Information Act regulations, claiming NSC exists solely to advise the President and is therefore not subject to the FOI Act.

The move came as NSC filed briefs in federal District Court in Washington, D.C., in Armstrong v. Executive Office of the President, a case now on remand from the U.S. Court of Appeals in Washington, D.C., in which the district court must decide which of the NSC’s records requested under the FOI Act are subject to the FOI Act and which, as presidential records, are subject only to the maintenance and disclosure requirements of the Presidential Records Act.

Until Itoh’s memorandum the NSC had maintained that, depending upon the functions it exercised, it would sometimes be subject to the FOI Act’s disclosure mandates and sometimes not. Records concerning its activities in solely advising the president were never subject to the act, it contended.

The president sent a memorandum to Itoh and Anthony Lake, assistant to the president for National Security Affairs, instructing them to nonetheless provide for “continued public access to those NSC records that have previously been left to an incoming administration to promote continuity in national security matters.” Itoh’s memorandum states that NSC will develop a disclosure policy to make those records available “on a discretionary basis.”

The 1974 amendments to the FOI Act expanded the definition of “agency” subject to disclosure requirements to include entities “which perform governmental functions and control information of interest to the public.” The legislative history makes clear though that the FOI Act does not apply to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”

Tom Blanton, executive director of the National Security Archive, told the Washington Post that Itoh’s open records policy to replace the FOI regulations would be “Trust-Me FOIA.” The National Security Archive is a plaintiff along with Armstrong in the litigation for NSC records. Blanton told the Post, “Every prior administration has admitted the National Security Council has a dual function. One function is presidential and the other function is agency . . . and the White House knows it.”

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