Although we agree that a more complete indication of the district court's rationale would have been helpful here, we decline to reverse on this ground. The cases cited above emphasize the special importance of a statement of reasons to those requesting documents, who do not know the exact content of the records and whose efforts to argue for disclosure are therefore hampered. That need is less pressing where, as here, those seeking a fuller justification from the district court are the one with custody over the documents and knowledge of their contents. And the CIA has not alleged here any prejudice to its efforts on appeal from the failure of the court below to say more than that inspection of the records did not corroborate the Agency's assertions of exemption.14 We wish to reiterate, however, that the preferable practice is a full explanation by the district court of both rulings of exemption and orders of disclosure. Here, for example, the court below should have indicated why it found the documents unprotected by the exemptions claimed. C. POST-JUDGMENT OFFER OF PROOF [9] Finally, the Agency argues that the court below erred in denying its Motion for Partial Relief from Judgment, which included an offer of an in camera affidavit explaining in greater detail the Agency's determination that the material was covered by exemptions 1 and 3. Citing Public Citizen Health Research Group v. United States Department of Labor, 591 F.2d 808 (D.C. Cir. 1978), the CIA maintains that if the court below found the Agency's affidavits insufficient, it should have accepted the post-judgment offer of additional proof. The national security ramifications of revealing the information contained in the documents may not have been apparent, notes the Agency, from inspecting the documents. In Public Citizen Health Research Group, this court did reverse a trial court's refusal to examine an in camera affidavit that explained why disclosure of the document at issue would harm privacy interests. But there the affidavit was submitted from the outset and not, as here, after in camera inspection and judgment. Even if an in camera affidavit would have been helpful and appropriate here, the court below did not abuse its discretion in denying the Agency's post-judgment offer of proof.15 The interests of judicial economy and finality militate against a court's tolerating a piecemeal approach by a party. This court has accordingly directed that agencies not make new exemption claims to a district court after the judge has ruled in the other party's favor. See Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 482 F.2d 710, 721-22 (D.C. Cir. 1973) (upholding denial of motion for hearing), rev'd on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). Similarly, an agency may not wait until appeal to raise additional claims of exemption or additional rationales for the same claim. See Ryan v. Department of Justice, 617 F.2d 781, 792 (D.C. Cir. 1980); Jordan v. United States 14 The Agency did not, for example, submit a motion for clarification, as had the appellant in Schwartz v. Internal Revenue Service, 511 F.2d 1303 (D.C. Cir. 1975). 15 This court has indicated that in camera affidavits, though appropriate in some cases, should be used with caution because they do not permit a response from the opposing party. See Allen v. Central Intelligence Agency, 636 F.2d at 1298 n.63 (D.C. Cir. 1980). Department of Justice, 591 F.2d 753, 779-80 (D.C. Cir. 1978) (en banc); Vaughn v. Rosen, 523 F.2d 1136, 1143 (D.C. Cir. 1975). In Ryan, for example, the court warned of "[t]he danger of permitting the Government to raise its FOIA exemption claims one at a time, at different stages of a district court proceeding." 617 F.2d at 792. Here the Agency knew that the sufficiency of its affidavits was at issue the Church had questioned the government's claims of exemption in its motion for summary judgment. If the Agency felt that it could not give a complete explanation on the record of its reasons for asserting exemptions 1 and 3, it should have considered submitting an in camera affidavit at a much earlier point. Moreover, despite the Agency's suggestion to the contrary, this is not a case in which the government's exemption arguments were not explored in depth below. The court conducted a thorough in camera inspection of the documents, and it had as a guide the Agency's Document Disposition Index, which explained in general terms the Agency's national security concerns and justifications for its exemption claims.16 An in camera affidavit may have provided more details, but the contours of the CIA's arguments were evident in the Index. And we have detected no indication that these arguments were not understood or fully considered by the court below. We therefore find no abuse of discretion in the denial of the Agency's Motion for Partial Relief from Judgment and refusal of an in camera affidavit.17 IV. CONCLUSION Because we find that Congress failed to exercise its control over both the Congress-created records transferred to the CIA and the CIAgenerated documents sent to Congress, we hold that neither set of materials contains congressional records immune from the FOIA under 5 U.S.C. § 551 (1) (A). Congress obviously has the prerogative to act to ensure the secrecy of its records and their exemption from the FOIA. But applying the criteria first articulated by this court in Goland v. Central Intelligence Agency, we detect nothing in either the circumstances attending these documents' generation or the conditions under which they were transferred between Congress and the Agency that indicates that Congress intended to retain control over them. Accordingly, we reverse on this point, but remand for consideration of the Agency's other exemption claims never ruled on below. We affirm all other portions of the district court's opinion and reject both the Church's arguments with respect to the definition of "intelligence source" and the CIA's challenges on cross-appeal to the court's disclosure order. Reversed and remanded. 16 Typically, when an agency's affidavits are an insufficient basis for summary judgment, a trial court will inspect the documents in camera or accept in camera affidavits. See Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). 17 Moreover, the court below granted the CIA a stay of its disclosure order pending appeal, and the Agency has not een able to elaborate on the need for an in camera affidavit on appeal. It only alleges that the court paid insufficient attention to its affidavits and failed to understand the national security implications of disclosure, speculations that are unsupported by the record. We reject the Church's contention that the district court's imposition of a stay was an abuse of discretion. See Providnce Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889 (1st Cir. 1979). SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, CIVIL DIVISION Misc. 112-79 RICHARD N. KATON, M.D. AND RICHARD KATON AND ASSOCIATES, INC., PLAINTIFFS V. JACK ANDERSON, HOWIE KURTZ, VALERIE STRAUSS, JACK ANDERSON ENTERPRISES, INC., AND THE EVENING STAR NEWSPAPER COMPANY, DEFENDANTS MEMORANDUM OPINION AND ORDER Plaintiffs herein have brought a defamation action against the above-named defendants in the Circuit Court for Montgomery County, Maryland (Law No. 59072). In connection with that action, plaintiffs have sought to take the deposition of William A. Shook, a person not a party to the defamation action. A subpoena was approved by another Judge of this Court and served upon the witness. Mr. Shook was, at the time relevant to the plaintiffs' cause of action, an employee of the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce of the United States House of Representatives, serving as a special assistant to Congressman John Moss. Plaintiffs believe that Mr. Shook has information relevant to their action in Maryland. Mr. Shook's deposition was commenced on October 12, 1979. The Assistant Counsel to the Clerk of the United States House of Representatives appeared with Mr. Shook and advised him to refuse to answer certain questions on the ground that the Speech or Debate Clause of the United States Constitution, Article I, Section 6, Clause 1, confers upon Mr. Shook a testimonial privilege permitting him to decline to answer any question related to his duties as an aide to Congressman Moss. Plaintiffs then filed a Motion to Compel Answers to Deposition Questions on October 19, 1979, which was opposed by the Counsel to Clerk of the House of Representatives. On December 14, 1979, this Court issued an Order requiring Mr. Shook to respond to questions that relate directly to his knowledge of the actions, state of mind and knowledge of defendant Howie Kurtz in connection with the preparation of the articles involved in the case of Katon v. Jack Anderson et al, . . .1 That Order further provided that Mr. Shook was not required 1 to answer any questions pertaining to the actions, statements 1 Howie Kurtz is a newspaper reporter not employed by the Congress. He is a defendant in plaintiffs' action in Maryland. son of Congress including himself with respect to any com- Mr. Shook's deposition was resumed on February 7, 1980, and again, on the apparent advice of the Assistant Counsel to the Clerk of the House of Representatives, Mr. Shook declined to answer numerous questions propounded to him by counsel for plaintiffs, asserting that this Court's December 14 Order permitted the witness to refuse to answer all questions "having to do with matters with the Congress" (Deposition Transcript, p. 56). Plaintiffs contested the witness's interpretation of the Court's Order at the Deposition and subsequently filed a Motion to Compel and for Contempt Hearing. That Motion, which is opposed by the Counsel to the Clerk of the House of Representatives, is now before the Court. Argument on that Motion was heard on March 6, 1980. By letters dated March 17, and March 18, 1980, counsel for the witness and for plaintiffs, respectively, further informed the Court of their respective positions on the matters at issue. Significantly, counsel for the Clerk of the House has indicated that answers will be made to some questions which the witness previously refused to answer, thus narrowing somewhat the scope of the issues before the Court. Article I, Section 6, Clause 1 of the Constitution provides, in part, that The Senators and Representatives . . . shall, in all Cases, The last part of this Clause establishes a privilege which is intended to prevent harassment of legislators, or interference in their work, by the Executive or the Judiciary. It privileges not only words spoken in speeches and debates on the floor, but, "[i]n short, . . . things generally done in a session of the House by one of its members in relation to the business before it". Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). In order to ensure achievement of the "fundamental purpose [of the Clause] of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator," members of the staff of a Representative or Senators are entitled to claim the privilege on behalf of a member of Congress.2 Gravel v. United States, 408 U.S. 606 (1972). Counsel to the Clerk of the House initially took the position that all acts and observations of Mr. Shook done or made within the scope of his employment with the Subcommittee were privileged from inquiry under the Speech or Debate Clause. At argument on plaintiffs' motion that position was refined to distinguish between Mr. Shook's official function as an investigator for the subcommittee responsible 2 Plaintiffs have not raised any question with respect to whether Mr. Shook must show express instructions to claim the privilege on behalf of a specific member of Congress. See Gravel v. United States, 408 U.S. 606, 622,, n. 13 (1972). for acquisition of information, and the dissemination of information to the public. It appears that the privilege is now being invoked only as to Mr. Shook's acts and observations occurring in the course of efforts to acquire (as opposed to disseminate) information. In United States v. Brewster, 408 U.S. 501, 512-516 (1972), a case involving the criminal prosecution of a former United States Senator for bribery, the Supreme Court reiterated previous holdings 3 that the privileges applies only to "legislative acts". 3 A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts. It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate "errands" performed for constitutents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called "news letters" to constitutents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things "generally done in a session of the House by one of its members in relation to the business before it," or things "said or done by him, as a representative, in the exercise of the functions of that office," In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. In every case thus far before this Court, the Speech or Debate Clause has been limited to an act which was clearly a part of the legislative process the due functioning of the process. [Citations and footnotes omitted; emphasis in original]. Id., 408 U.S. at 512-516. 3 The Speech or Debate clause has been addressed by the Supreme Court in the following cases: Hutchinson v. Proxmire, 99 S.Ct. 2675 (1979); Eastland v. United Servicemen's Fund, 421 U.S. 491 (1975) Doe v. McMillan, 412 U.S. 306 (1973); Gravel v. United States, 408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501 (1972); Dombrowski v. Eastland, 387 U.S. 82 (1967); United States v. Johnson, 383 U.S. 169 (1966); and, Kil bourn v. Thompson, 103 U.S. 168 (1881). |