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Withdrawal/Redaction Sheet
Clirhort Library
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DOCUMENT NO.
AND TYPE
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SUBJECT/TITLE
DATE
RESTRICTION
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001. memo
Walter Dellinger to Melanne Verveer, re: Legal Issues (1 page)
09/27/1993
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002. memo
Health Care TasJ
re: Anticipated
Walter Dellinger to
Constitutional and Legal Challenges to tlle President's Health Care
Reform Initiative (5 pages)
09/1§11993
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th~
~orce,
COLLECTION: I
Clinton Presidential Records
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First Lady's Office
Melanne Verve6r (Subject Files: H)
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FOLDER TITLE!I
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Health Reform [1]
Kara Ellis
2006-081 0-F
ke1041
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Freedom of Information Act - [5 U.S.C. 552(b)]
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P2 Relating to the app6intment to Federal office [(a)(2) of the PRA]
P3 Release would viol~te a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial informatic\n [(a)(4) ofthe PRA]
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C. Closed in accordance with restrictions contained in·donor's deed
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U. S. Department of Justice
DETERMINED TO BE AN
.. Office of Legal Counse1ADMINI%~TIVEMARKING
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DATE:&I 13/Dj
INITIALS:
~C>OCP- 63/D-
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· Washington, D. C. 20530
the
""""""'""!Attorney General
September 27, 1993
MELANNE VERVEER
Walter Dellinger
Acting Assistant
on
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torney General
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Today•s N.Y. Times st
0fficials Predict Deluge of Suits
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th Plan is unneces
ily alarming •. The evolving health
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plan .is legally and constitutionally sound, and once in
, suits for remedies cati be handled in a more efficient
than under present laJ.
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It is possible to include in the plan a constitutionally
ible provision.insuring prompt resolution of facial
enges to the plan's leg~lity.
[The confidential working
now provides, at my suggestion, that 11 any civil action
t to invalidate any provision of this Act on the ground of
eing repugnant to the cdnstitution·of the United States on
ce 11 must be brought wichin one year of enactment in a
-judge court in the Disidrict of Columbia with direct appeal
u.S. ·supreme Court. 1
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We are also working on efficient methods of resolving
tes that arise under th~ plan. Rather than leading to
litigation, . this pllan can be designed to provide for a
rational and streamlined system ofremedies ~n the area of
Cc:lre . than n.ow exists. Of · cours~, we will want to preserve
rtunity of individuals to seek judicial redress for ·
of unlawful discrimina!tion. On the other hand,· claims .for
sement, and challenges by providers to reiiDbursemen:t
~AAvu.vlogy, should be resol~ed without extensive judicial
t. It is also important'to limit the opportunity of
to challenge in cou!rt the overall.budgetary ceilings
have be~n establis~ed b~·policy.makers.
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A 1990 Supreme.Court.decision, Wilder v. Virqinia Hospital
allows Medicaid ~roviders acc.ess to federal court to
tate officials for more money than had been appropriated.
can and should be fixed.l Instead of allowing every federal
ct judge to issue orde:tjS for more SJ?ending, we can
itute a process of administrative review of reimbursement
and make that the exclusive remedy.
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U. S. Department of Justice
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Office of Legal Counsel
Washington, D. c. 20530 ·
Office of the
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Assistant Attorney General
·september 16, 1993.
MEMORANDUM FOR THE HEALTH CARE TASK FORCE
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Anticipated Constitutional and Legal Challenges to the
· President's Health Care Reform Initiative
In the 1930s, the United States faced a grave economic
crisis that threatened the very fabric of the nation's social and
polithcal life. The response I of the administration of Franklin
D. Rdosevelt was a bold and ultimately successful attempt to
reinVent much of American gov~rnment.
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. ·.lAs always in our· constitbtional system, novelty raised
constitutional concerns.· ThejSupreme Court greeted these
deveJ.!opments at .first with caution, and for a brief and dramatic
time jwith constitutional rejeCtion. In the end, however, the.
Court concluded that the Constitution provided the national .
gove~nment with ample authority to address problems that ·
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impl~cate the health and well~being of the national community.
\President Clinton's health care reform legislation will be
the most constitutionally innbvative national initiative since
the New Deal. Like .the New D~al, health care reform will
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nece~sarily involve the creation of new structures of government
and df new relationships betw~en the public and the private
sectdrs. Like the New Deal, ~orne aspects of healt~ care reform
are Jlikely to be assailed in Congress and (if enacted) in the
courts as unconstitutional. Careful and creative legal advice in~..
the fformulat1on of the Pres1dent's proposals w1ll be cr1t1cal to
his ~nitiative's success in cbngress and to the ability of the
Depa~tment of Justice to defe:hd health care reform in any
lawsuits that ensue. ·
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!Health care reform on the scale that the President will be
proposing may be challenged as an intrusion on a variety of
constitutionally protectedinterests. It is our preliminary
judgJment that these challengi=s should clearly fail urider current
standards. Even so, the novel context in which the courts would
address these substantive iss-hes makes it important to consider
withjcan~ even thos~ c;ruestion~ that would have uncontroversial
· answers 1n more fam1l1ar settiLngs.
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CLTNTON LIBRARY PHOTOCOPY
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The Office of Legal Counsel is preparing to provide the
Presd.dent and the AttorneyG~neral with the legal advice
neceksary·to ensure that heallth care reform legislation is
effettive and constitutional.l 1 We anticipate that OLC' s review ·
of the legislation 'will be a:d ongoing process. We will continue
to p~ovide advice during theicurrent, drafting phase, and will
comml=nt on the entire bill w:t:iem it is completed. The process of
cong~essional consideration dnd debate, furthermore, will produce
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a need to prepare admJ.nJ.strat1on·test1mony as well as to
formhlate responses to criticisms of the bill couched in
constitutional terms~ At eaCh stage, OLC and the other units of
the Department of Justice thdt are involved will need to marshall
the ~esources to· provide the. IPresident with legal support·· of the
· highl=st quality. This memordndum ·outlines OLC' s ·.current
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understanding of the legal issues posed by health care reform,
and the Office's plan for prdviding the President and the
admihistration with the nece~sary advice.
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I. Structural !constitutional Issues
• Federalism: Nationa] heaith care is dependent by
definition on universal availlability. At the same time, the
Pres~dent's initiative does :dot contemplate creation of a vast
new ~ederal bureaucracy, but !rather the innovative use of state
reguilatory bodies to administer the national plan wherever
poss~ble.
The constitutionallity of the means chosen for inducing
the ktates to participate inlnatiort~l health care and for·
,ensuring state compliance with federal requirements are vital
questions. The extent to wh~ch state laws would (or would not)
be preempted by provisions ori the federal plan should be
carefully considered, and delliberate choices made about the
desi~ability of such preempt~on.
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Separation. of powers
The President's initiative will
proppse creative hew institutionaL means of providing and
reguilating health care. The !use of independent federal entities,
stat!= officials and private bodies will present constitutional
questions under the Supreme dourt' s decisions interpre.ting the·
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Media reports that the American Medical Association has · ..
obta,ined a report from a major Chicago law firm .stating that
aspetts of health care refor~ might violate the fifth amendment's
takihgs clau~e, see "AMAto ~ight Limits on Doctors' Fees," Wall
Strekt Journal (Sept. 9, 1993), are a remindef that the very
scopb of the initiative may ~ake it appear worthwhile to
oppohents to expend serious Jesources generating legal arguments
that~will d~mand response ev~n if they would not ultimately
prevail in court.
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�President's appointments power and the constitutionally ordained
sepa:l:-ation of powers.
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The importance of national
health care will f6cus atten~ion on the President's choices of
thos~ who. will administer it·! For that and ·other reasons,. it may
be some·t1me before all necessary posts under the plan are
fill~d, especially assuming Senate confirmation i·s required for .
memb~rs of the National Heal~h Board. At the same time,· the
grav~ty of the problems we face counsels the swift inauguration
of the plan's initial phases jafter enactment. The methods chosen
for the interim administration of the plan must be tailored to ·
meetjany constitutional objedtions. · [OLC now has a draft memo
setting forth several methodJ for getting a National Health Board.
up-ahd-running without delay.IJ
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• ·Channeling attacks on the legislation as a whole.
It
will·be important for the fu]l implementation and administration
of national health care refo~ that we obtain swift answers to
the general constitutional c~allenges to the plan. Providing a
· specific and exclusive jurisdictional framework for such legal
actibns and 'imposing a stricti statute of limitations on their
initiation would address this concern. [We are exploring a
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requ~rement that any actionslseeking to invalidate any provisions
of the act mq.st be brought w:i,thin one year and consolidated
befo~e a three-judge court district court in the District of
Col ufubia wi til .direct review by the U.S. Supreme. Court.] ·
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· I • An effective and efficient system of remedies for
problems in the administratidn of .national health care. Disputes
willj arise over the general dompliance of state, health alliances
and private insurers. with th~ reform legislation, as well as over
decisions.involving individual recipients of.health care. An
adeqpate, practical system fbr resolving these disputes will be.
cruc~al to ensuring quality ~ealth care and to cost containment.
Creating such a system depends in the first instance in proposing
and bnacting a coherent arid constitutional set of remedies.
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Harmonizing the healJh care. system wi,th existing federal
and remedies.
The relationship between the specific
remedies and substantive rig~ts guaranteed by the health care
righ~s
refo6m legislation and preexisting federal law must be clear.
Among the issues to be addre~sed are the interaction between the
new provisions aridfederal arh.ti-discrimination legislation and
the availability of § 1983 f9r claims arising under the health
carej plan. In order to reduce the volume of federal court
litigation over disputes ari~ing within the system, it may be
nece ssary to establish alterrilative remedial mechanisms.
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CLINTON LIBRARY PHOTOCOPY
�III. Substantive
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Con~titutional
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Issues
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As noted above,
a manor law.firm reportedly has advised the AMA that.in some
circumstances interference w~th the "free" market of health care
suppiy and demand could amoudt to a taking of private property
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.under the fifth amendment.
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.Regulation of physicians' compensation:
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Required participatidn in national health care: The
legislation under considerat~on would include all American
.citi~ens ~nd iegal·residentsjwithin the h~alth care plan's
benefits and obligations. This·could raise question~ about the
constitutionality 'of requirirtg universal participation in a
governmental program under cdnstitutional guarantees of liberty
and privacy. Among.those qu~stions g.re issues raised by
Americans with religious obj~ctions to participation and civillibertarian concerns with un~versal recordkeeping and national
identity .cards.
• Access to health care services: The health care reform
· init~ative contemplates a reStructuring of the availability and
provision of services in ord~r to ensure that critical and
prev~ntive care is accessibl~ to all. · That restructuring
necessarily means that the s~rvices available within the national
. heal~h.plan will differ fromlthe services provided those who can
pay in an essentially unregulated private market. It is possible
thatj those denied some services will raise due process or equal
prot~ction challenges to the inclusion and exclusion of
procedures and services~
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Regulation of insurance marketing: The essential role of
private insurance providers ~n the system may entail public
regulation of some aspects o~ those providers' commercial
acti~ities.
In defining theSe restrictions, the health care
reform legislation must take careful account of first amendment
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Tort reform and alternative dispute resolution: One
aspect of health care·reformlis finding just and effective means
of r~ducing the share of hea]th care expenditures currently spent
on artd through litigation. Among the changes that may be
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propbsed are caps on tort recoveries and an enlarged role for
alternatives to litigation. The validity of these_changes under
the due process clause is an important concern.
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CLINTON LIBRARY PHOTOCOPY .
�. IV. Other Issues
• There are many otherlimportant legal questions raised by
the·health care initiative that demand careful·attention.from
othe!r units of the Department± of Justice. The Civil and Criminal
Divi~ions (anti-fraud and ant±i-waste provisions), the Antitrust
Divi~ion (coordinating antitrust enforcement with the creation of
a coherent system for providing health care), .the Civil Rights
Divi~ion (ensuring non-discr~minatory access to health care for
all Americans), and the Office of Policy Development
(coolrdinating health care reflorm with other administration
init~atives) should all be irtvolved in the process of reviewing
draft legislation and provid~ng legal advice.
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Walter Dellinger
Acting A~sistant Attorney General
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CLINTON LIBRARY PHOTOCOPY ..
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Withdrawa]/Redaction Sheet
. Cli~ton Library ·
DATE
SUBJECTffiTLE
DOCUMENT NO.
AND TYPE
RESTRICTION
001. memo
Cheryl Mills and Beth Nolan to MargarJWilliams, re: Staffmg Issues
Related to the Health Care Interagency Cbordinating Committee (3 .
pages)
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10/05/1993
P5
002. memo
Cheryl Mills and Beth Nolan to Jenilifer O'Connor, re: Additional
Guidance on Health Care Support (2 pages)
10/19/1993
P5
003. memo
Alan Hoffman to Maggie Williams, re: Hbalth Care Task Force
Scheduling [partial] (1 page)
04/24/1993
COLLECTION: I
Clinton Presidential Records
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First Lady's Office
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Domestic Polic){J Council (Neera Tanden: Correspondence, Health Care, Violence, Drugs)
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FOLDER TITLE:!I
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M. Williams Health Files [Folder 3]: Personnel [3]
Kara Ellis
2006-081 0-F
ke1040
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RESTRICTION CODES
Freedom of Information Act- [5 U.S.C. 552(b)]
Presidential Records let- [44 U.S.C. 2204(a)]
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b(l) National security classified information [(bXI) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
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b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
-b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy·[(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b )(7) of the FOIAJ
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appbintment to Federal office [(a)(2) of the PRA]
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P4 Release would discl'ose trade secrets or confidential commercial or
financial informatiJn [(a)(4) of the PRA]
PS Release would disci'ose confidential advice between the President
and his advisors, or: between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
·personal privacy [(J)(6) of the PRA]
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concerning well£!t>lW'l~f·PtYBRARY
PHOTOCOPY
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�THE WHITE HOUSE
WASHINGTON
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Oc-tober 5, 1993
MEM0RANDUM FOR MARGARET WILUIAMS
CHIEF OF STA,F, OFFICE OF THE FIRST LADY
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CHERYL MILLS ~)2i'(l'\._,.
ASSOCIATE COUNSEL TO THE PRESIDENT
FROM:
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BETH NOLAN
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ASSOCIATE COUNSEL TO THE PRESIDENT
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SUBJECT:
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Staffing Issues Related to the Health
Care Interag~ncy Coordinating committee
This memorandum responds to your inquiry of October 4, 1993. In
part/' icular, you inquired as to the appropriate staff arrangements
for two aspects of the Health Care Interagency Coordinating
Committee -- the telephone and correspondence response units and
support staff for agency representatives to the Committee.
Coordinatin~
ThJ Interagency
Committee, which we.understand began
on IJuly 1, 1993, is the coof"dinating group for the efforts of the
Wh~te House, Department of Treasury, Department of Health & Human
se~vices, Department of Vet~rans Affairs, Department of Commerce
and the Small Business Assobiation to educate the public about
th~ Administration's Healthj Care Plan ("the Plan")• It is our
.understanding from you. that the Committee is . composed solely of
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go'{ernment employees and ~s based at the Wh~te House. You have
informed us that government officials from the aforementioned
departments are agency representatives to the Committee, and are
r~~ponsible for representing their agency's positions to the
· co~i tte.e as well as provid!ing input and information· from their
departments. Thus, each department, through its agency
representatives, is part ofl a coordinated effort to explain the
Plan to the public, with p:tiimary responsibility for those aspects
offth~ Plan about which it has superior technical knowledge or
information.
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INTERAGENCY COORDINATlNG COMMITTEE.STAFFING NEEDS
Telephone Response Unit
Thi White House received over 7,000 calls the week of the
Pr~sident's address to Congress from the public asking specific
_ qu~stions about the Plan. fThe White House continues to receive a
high volume of calls seeking responses to particular questions
about the Plan. ·These que$tions regularly · raise issues that are
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best addressed by knowledg~able individuals from one or more of
thb coordinating departments,~, how will the Plan, affect
sm~ll businesses and how will it be financed. As part of its
CLINTON LIBRARY PHOTOCOPY
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efforts to educate the public, the Committee would like agency
rep~esentatives to work in a/ designated telephone response unit
sup~rvising a.group of indiv~duals in responding to specific
quest1.ons about the·Plan tha~~relate to thel.r department's area
of ~xpertise. Based on the rolume of calls .and the specificity
. of. questions posed, the Committee anticipates that it will need
at least 6 - ·a employees froht the co'ordinating agencies.
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Response Un1.t
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Simllarly, the White· House
over 35,000 pieces of mail in
the /month of September (16, o/bo addressed ·to the President; 6, 000
addressed to the First Lady; 5,400 addressed to the Health Care ·
Co~ittee) asking specific questions about the Plan and seeking
infbrmation. As previously mentioned, each coordinating
department has particular in formation about various aspects of
the/Plan •. The Committee an~icipates that it will need at least 6
- 8 employees from the coordinating agencies to supervise a group
of individuals designated td respond to questions about.the Plan
that relate to their departttient's area of expertise •
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Sup~ort. Staff
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for CoordinatJnq Committee Agency-Representatives
It ls our understanding thaJ the Interagency coordinating
Contrnittee presently has meln}:jers -- agency representatives -- from
the/aforementioned agencies !who produce documents and make.
proposals regarding policy issues affecting the Plan and the
public education effort. These agency representatives 1:egularly
use/support staff_to meet t~eir acllninistrative a:nd clerical .
needs. ·In response to the growing demand for such support, the
Conquittee anticipates tl:lat ~he agency representatives will need
to bring staff from their own agencies or departments to support
thein in their departments' ~fforts on the Committee.
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ANALYSIS OF PROPOSED STAFF
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-The proposed supervisors for the telephone and correspondence
response efforts are properly considered agency representatives.
The~e individuals will be rEbpresenting their departments and
agehcies ~s part.of the coordinating Committee, each responsible
fori ensuring accurate respo?ses to t':lrgeted inquiries. in their .
. department's area of expert1.se. It 1.s our understand1.ng that all
of lthe individuals consider~d as potential supervisors currently ·
are employed full-time at aldepartment or agency, with regular .
dutlies. · They will continue to be supervised by, and report to,
the ir own agency supervisors, and provide input and information
to /the Committee that is consistent with their agency's
di~ection.
They will also ~eek guidance from their departments
to respond _to inquiries abo~t aspects of the Plan to ascertain
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�their department's position; ·consistent with the overall efforts
of bhe Coordinating Committee. .·As agency representatives, these
ind~viduals' services, whichiare provided in furtherance of their
agehcy's and the Coordinating Committee's interests, are .non--
rei~ursable.
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Supdort staff from the coordinating-agencies who directly support
the~r agency representatives) are properly deemed- assignees, not
deta!ilees. Such staff clearily meet the criteria for a nondeta!ilee set forth by the Geheral Accounting Office ("GAO") in
its !report regarding the use) of detailees. See GAO Report,
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"Pe:qsonnel Practices 11 (November 6, 1992). Support staff
per15'orming services f·or their agency representatives will be ·
per1S'orm1ng the1r normal agency dut1es. It 1s our understand1ng
tha~ these individuals will bontinue to report to an agency
emp]oyee (the agency represeptative), who will supervise them,
pro~ide their work assignmen~s and review their work product.
The~e factors enable us to categorize such individuals as an
assignee and not a detailee,·i even under the admittedly heightened
startdard used by the GAO in ~its study. Id. at 15. As nondetdilees, the support staff!' s services provided to their agency
rep~esentatives is non-reimbursable.
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Thil memorandum defines.how !the. identified staff should be
cat~gorized. Staff supervis ing responses to telephone an<t
correspondence inquiries abo ut the Plan are non-reimbursable·
age~cy representatives to t~e Health Care Interagency
Coo:i-dinating Committee. st~ff provfding clerical support to
age~cy representatives curr~ntly serving in policy roles on
beh~lf of their agency or d~partment are non-reimbursable
assignees.
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We ihould stress that this memorandum provides general guidance.
To ~nsure ·that specific reqdirements are met and that individuals
und~rstand their roles, anydne identified to perform services for
the/Health Care Interagency !coordinating Committee pursuant to
the arrangements described above, should be approved by Counsel's
Office. We will provide sp~cific guidelines for their service as
well as approval· for access to the complex.
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cc:
Jim Dorskind
Jennifer O'Connor
John Podesta\,.,.
Christine Var~\Y
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CLINTON LKBRARY PHOTOCOPY
�THE WHITE HOUSE
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Ociober 19, 1993
MEMORANDUM FOR JENNIFER 0 'CONNOR
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OFFICE OF MANAGEMENT AND ADMINISTRATION
FRO~:
CHERYL MILLJ fb----'
ASSOCIATE COUNSEL TO THE PRESIDENT
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BETH NOLAN I
ASSOCIATE COUNSEL TO THE PRESIDENT
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SUBJECT:
Th~s
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Additional Guidance on Health Care Support
r~sponds
memorandum
tJ your inquiry regarding our memorandum
of] October 5, 1993, "Staff~ng Issues Related to the Health Care
In~eragency Coordinating cdmmittee." In particular, you asked
wh~ther clerical staff for jagency representatives should be
ca~egorized differently th~n assignees as defined in a 1992
General Accounting Off ice ·~"GAO") report. See GAO· Report,
11
Pbrsonnel Practices" (November 6, 1992).
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i. · .· .
·I · · ·
Th a.s ~nqu~ry re fl ec t s a quest~on o f nomenc 1a t. ure rather t han
legality ~- the legal issu~ is whether these individuals meet the
deffnition of a detailee. !clerical ·staff who perform their
regular duties for agency employees who are representatives to an
in~eragency task force or dommittee do not meet the definition of
a detailee. GAO Report at
A detail is "the temporary
·as~ignment of an employee to a different position or set of
du~ies for a specified per~od of time." ,Ig. at 2. Because
clerical staff supporting ~gency representatives would continue
toj be supervised by an agertcy employee, remain in their same
position and continue to p~rform the same set'o.f duties, they are
not detailees. l_g. at
115.
15.1 ·
.
. .
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·
Inl the 1992 GAO Report, thEf Office of Administration provided a
list of categories of other government employees working at the
Wh[.te House who did not me~t the definition of a detailee. This
list was not exhaustive; r~ther, it identified groupsof other
agbncy employees who were ]ocated at the White House who did not
mebt the definition of a d~tailee.
.
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.
Thr clerical staff who may be brought to the White House to
support their agency's representatives to an interagency task
force or committee meet th~ definition of an assignee as
deScribed by GAO in its re:Port. However, such individuals are
alSo distinguishable from ~ssignees as described in the report
bebause they will be workirtg for an agency employee who is a ·
representative to a task fdrce on-site at the White House, as
opposed to working for an ~gency employee located at their home
agency.
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CLINTON LIBRARY PHOTOCOPY
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Giv~n the distinction betwe~n this group and those defined as
"as~ignees" in the GAO Repoijt, you have inquired whether. you may
categorize this group of non-detailees as other than "assignees."
Youlhave expressed a desire Ito create more specific categories of
nonrdetailees to reflect potential distinctions in the conditions
of their service. While it lis· permissible for your office to
<!raj., such distinctions, the~ are not required by law. . .
The legal issue with respect to such employees is only whether or
not they are detailees, not !what they ~re labelled if they are
not detailees. Thus, narrower categor~es are not required by
law.· Ultimately, the delin~ation of additional categories of
noritdetailees may make it mdre difficult to categorize such
empioyees accurately •. Howe~er, the issue of how such employees
arel labelled is an administr:ative issue within the discretion of
your Office, so long as the !categories created accurately include
only those persons who are properly termed non-detailees.
cc:
Jim Dorskind
John Podesta
Christine Varney
Maggie Williams
C:LTNTON IJBRARY PHOT0COPY
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Withdrawal/Redaction Sheet
.Cli11ton Libtary
I
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
OOla. memo
David Wilhelm to Hillary Rodham Clintln re: Health Care Campaign
(2 pages) ·
. .
03/10/1993
Personal Misfile
OOlb. memo
Joe Sandler to Celia Fisher re: Formation of(c)(4) for Health Care.
Campaign (3 pages)
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03/09/1993
Personal Misfile
002. schedule
President's National Health Care Campaign schedule (4 pages)
n.d.
Personal Misfile
003. calendar
.
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Health Care Campaign calendar (3 pages)
n.d.
Personal Misfile
10/0511993
P5
I.
Cheryi Mills and Beth Nolan to Margarel Williams, re: Staffmg Issues
I
Related to the Health Care Interagency Coordinating Committee (3
pages)
004. memo
COLLECTION: I
.
Clinton Presidential Records
I
First Lady's Office
Domestic Polic~ Couricil (Neera Tanden: Correspondence, Health Care, Violence, Drugs)
·I
OA/Box Numbe~: 20357.
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FOLDER TITLE:
M. Williams H6alth Files [Folder 3]: Legal
Kara Ellis
2006-081 0-F
kel27
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RESTRICTION CODES
Presidential Records Lt- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
I
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the ap~ointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disJJose trade secrets or confidential commercial or
·financial information [(a)(4) of the PRA)
PS Release would disJJose confidential advice between the President
and his advisors, o~ between such advisors [a)(S) of the PRA)
1
P6 Release would con stitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(bXI) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
. an agency [(b)(2) of the FOIA)
b(3) Release would violate a F.ederal statute [(bX3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled fodaw enforcement
purposes [(b)(7) of the FOIA) ·
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose ge~iGI'~ ~']~RP..qY~icfJN~rpation
concerning wells [(b)(9)o't.tlle~to':t JVl~ L
acco·~~~dance
C.. Closed in
with restrictions contained in donor's deed
of gift.
PRM. Personal record misfJle defined in accordance with 44 U.S.C.
1
2201(3).
RR. Document will be reviewed upon request.
.
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THE WHITE HOUSE
WASHINGTON
ocJober 5, 1993
.
MEMORANDUM FOR MARGARET WILUIAMS
I
CHIEF OF STA,F, OFFICE OF THE FIRST LADY
. CHERYL MILLS '9-530~\../
ASSOCIATE COUNSEL TO THE PRESIDENT
FROM:
I
•
•
.BETH NOLAN
I.
ASSOCIATE CO,SEL TO.THE PRESIDENT
SUBU'ECT:
1-
Staffing Issues Related to the Health
Care Interag~ncy Coordinating Committee
Thi~ memorandum responds to your inquiry of October 4, 1993.
In
partj icular, you inquired as to the appropriate staff arrangements
for two aspects of the Health care Interagency Coordinating ..
Committee -- the telephone and correspondence response units and
. support staff for agency representatives to the Committee.
The/Interagency CoordinatinJ Committee, which.we understand began
on .Iauly 1, 1993, is the cootdinating group for the efforts of the
Wh1~e House, Department of Treasury, Department of Health & Human
Ser~ices, Department of Vet~rans Affairs, Department of Commerce
and the Small Business Assodiation toeducate the public about
the Administration's Health Care Plan ("the Plan"). It is our
und erstanding from you that ~he Comrili ttee is composed solely of
government employees and is based ·at the White House. You have
inf ormed us tl;lat government officials from the aforementioned
dep artments are agency representatives to the Committee, and are
responsible for representing their agency's positions to the
Committee as well as providtng input and information from their
dep:artments. Thus, each department, through its agency
representatives, is part ofla coordinated effort to explain the
Plab to the public, with primary responsibility for those aspects
of !the Plan about which it has superior technical knowledge or
information. .
.
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INTERAGENCY COORDINATING COMMITTEE STAFF:ING NEEDS.
Te]ephone Response Unit
ThJ White House received over 7,000 calls the week of the . ·
Pr~sident's address to Congress from the public asking specific
qu~stions about the Plan. The White House continues to receive a
high volume of calls seeking responses to particular questions
about the Plan. These questions regularly raise issues that are
be~t addressed by knowledgeable individuals from one or more of
th~ coordinating department~, ~, how wi~l the Plan affect
smc:hl businesses and how will it be financed. As part of its
CLINTON LIBRARY PHOTOCOPY
�efforts to educate the public, the Committee would like agency
reptesentatives to w·ork in aj designated telephone response unit
sup~rvising a group of indiv~duals in responding to specific
que~tions about the Plan tha t relate to their department's area
of ~xpertise. Based on the folume of calls and the specificity
of questions posed, the committee anticipates that it will need
at least 6 - 8 employees frotn the coordinating agencies.
1
I
Correspon
d
Sim~larly,
..
ence
R
esponse
u ..
J
.
n1~
Jec~ived
the White House
over 35,000 pieces of mail in
the/month of September (16,000 addressed to the President; 6,000
addressed to the First Lady;: 5, 400 addressed to the Health Care
gom:bittee) asking specific questions about the Plan and seeking
infbrmation. As previouslylmentioned, each coordinating
dephrtment has·particular information about various aspects of
the Plan. The Committee an~icipates that it will need at least 6
.- 8 • employees from • the coordinating agencies to supervise a .group
•
,.
I
•
of 1nd1v1duals des1gnated t9 respond to quest1ons about the Plan
thajt relate to. their departient's area of expertise.
1
Support Staff for Coordinating ·committee Agency-Representatives
It~i~
tha~
Coordina~ing
our. understanding
the Interagency
Comm1ttee presently has members -- agency representat1ves -- from
th~ aforementioned agenciesjwho produce documents and make
prdposals regarding policy issues affecting the Plan and the
pu~lic education effort.
T~ese agency representatives regularly
use;support staff to meet t:peir administrative and clerical
needs. In response to the growing demand for, such support, the
Co~ittee anticipates that the agency representatives will need
to/bring staff from their o~ agencies or departments to.support
them in their departments' bfforts on the Committee.
IIJ
ANALYSIS OF PROPOSED SkAFF
fo~
Thl proposed supervisors
the telephone and correspondence
response efforts are properjly considered agency representatives.
These individuals will be r epresenting their departments and
agencies as part of the Coordinating Committee, each responsible
fot ensuring accurate respdnses to targeted inquiries in their ·
department's area of expert:ise. It is our understanding that all
ofithe individuals.conside~ed as potential supervisors currently
are employed full-time at a department or agency, with regular
duties. They will continu~ to-be supervised by, and report to,
th~:dr own agency superviso:rls, ·and provide input and information
to/ the Committee that is cdnsistent with their agency's
direction. Th~y w~l~ a~sojseek guidance from their departme~ts
to respond to 1nqu1r1es about aspects of the Plan to ascerta1n
1
2
CLINTON LIBRARY PHOTOCOPY
�the~r department's positionl consistent with the overall efforts
of the Coordinating Committ~e. As agency representatives, these
individuals' services, which are provided in furtherance of their
agehcy's and the Coordinatirtg Committee's interests, are nonreitnbursa~le. .
•. .
. I
·.
.
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_
-
Sup~ort
staff from the coordinating agencies who directly support·
thea.r agency representatives are properly deemed assignees, not ·
det6.ilees. Such staff clearly meet the criteria for a nondet6.ilee set fortn by the G~neral Accounting Office ("GAO") in
itsj report regarding the us~ of detailees. See GAO Report,
"Personnel Practices" (Nove~er 6, 1992). Support staff
per~orming services for their age~cy representatives ~ill be
per/forming their normal age:hcy duties. It is our understanding
tha,t these individuals will! continue . to report~ to an agency ·
emp:loyee (the agency representative), who will supervise them,
provide their work assignmehts and review their work product.
Th~se factors enable us to bategorize such individuals as an
as.~ignee and not a detai17el,. even under the ,admittedly h~ightened
standard used by the GAO 1n 1ts study. Id.; at 15. As non-·
detailees, 'the support staf,f 's services provided to their agency
representatives is non-reimbursable. ·
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...
III. CONCLUSION
- . .
.
.
.
.
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This memorandum defines how the identified staff should be
categorized. Staff superv~sing responses to telephone and
·correspondence inquiries about the Plan are non~reimbursable
ag4ncy representatives to the Health Care Interagency ·
co6rdinating Committee. staff providing clerical support to
ag+ncy representatives cur~ently serving in policy roles on
be?~lf of their agency or department are non-reimbursable
ass1gnees.
We should stress that this memorandum ·provides general guidance. ·
To ensure that specific reqUirements are met and that individuals ·
understand their roles, anyone identified to perform services for
th~ Health Care Interagency-coordinating Committee_pursuant to
thr.arrangeme~ts desc:ibed/ab~v7, sh~uld.be approved.by Cou~sel's
Of~1ce.
We w1ll provlde spec1f:1c gu1del1nes for the1r serv1ce as
we ll as approval for access to the complex.
·
1
cc:
Jim Dorskind
Jennifer O'Connor
John -.Podesta. ·
Christine Var ey
·"·
3
CLINTON LIBRARY PHOTOCOPY
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Wtthdrawa]/Redactton Sheet
·
DOCUMENT NO.I
ANDTYPE
I
Clinton Library·
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SUBJECTffiTLE
DATE
RESTRICTION
Pros and Cons of Appealing or Not Appelling the FACA Decision (2
ca. 1993
P5
Po~ts
. . .
.
. .
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Ra1sed By Justice Department and ~Observations On Them (5
pages)
.
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ca.l993
P5
003. note
Handwritten note from Vince Foster to Hillary Rodham Clinton, re:
FACA {I page)
.
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03/14/1993
P5
.004.list
Guidelines From Meetings With The President To Discuss Health
Care Reform Issues (I page)
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ca. 1993
P5
005. memo
Robert E. Kopp and David J. Anderson to Vincent Foster and Stephen
Neuwirth, re: Compliance Issues and App~al Prospects in Ass'n. of
American Physicians and Surgeons v. HillarY Rodham Clinton, et al.,
No. 93-399 (D.D.C.) (9 pages)
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03/12/1993
P5
006. draft
Draft charter of the President's Task Force on National Health Care
Refo~ (~ pages)
·
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03/1993
P5
007. fax
Material regarding the Leadership Institute (5 pages)
02/19/1993
Personal Misfile
008. letter
.
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Holland H. Coors to Miss Carol Keys (7 pages)
12/08/1989.
Personal Misfile
David J. Anderson to Vincent Foster and Stephen NeuWirth, re: Issues
Relating to the Document Disclosure Provlision of the Federal
Advisory Committee Act (10 pages)
03/24/1993
P5
Cover:sheet for to Steve Neuwirth {1 page)·
03/24/1993
P5
00 I. Jist
pa~es)
· 002. paper
. .
009a. memo
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009b. fax
.
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COLLECTION: . ·
Clinton Presidential Records
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First Lady's Office
.
Melanne Ver{,eer (SubjectFiies)
I.
ONBox Numtier: 10255
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FOLDER TffUE:
•
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HEALTHCARE TASK FORCE [1]
.
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Kara Ellis
2006-081 0-F
.ke206
.
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RESrniCTION CODES
F~eedom of Information Act -IS U.S.C. SS2(b))
Presidential Records Act - (44 U.S.C. 2204(a)J
Securi~
Classified Information [(a)(l) of the PRA)
National
Relating to the a'jlpolntment to Federal office )(a)(2) of the PRA)
Release would violate a Federal statute ((a)(3) of the PRA)
Release would dlsclose trade secrets or confidential commercial or
financlallnform~tion ((a)(4) of the PRA)
PS Release would dlsclose confidential advice between the President
and his advisors! or between such advisors (a)(S) of the PRA(
P6 Release would c?nstitute a clearly unwarranted invasion of
personal prlvacyl((a)(6) ofthe PRA)
.
.
. ·.
PJ
P2
P3
P4
b(l) National security classified information ((b)(l) of the FOJA)
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the. FOJA)
·
b(3) Release. would violate a Federal statute ((b)(3) of the FOIA)
b(4) Release would disclose trade secrets or co.nfidential or financial
information ((b)(4) of the FOlA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
.purposes ((b)(7) of the FOIA)
. b(8) Release would disclose· information concerning IJJe regulation of
financial institutions ((b)(8) of the FOlA]
·
b(9) ReleaS~ftu~qi¥-IPt~~e~ogV,.aJ,.or,~Qip'sical information
C. Closed in accordance with restrictions contained in donor's deed
ofgift. _ I
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PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
1
RR Document will be reviewed upon request.
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concer~ells~<h~9Jto!.tAirH~K r
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�DETERMINED TO BE AN
ADMINISTRATIVE MARKING
INITIALS:
Y\Df.
DATE:CZV31Cf1
~OC>(.o- C>% I b- F
a.nd CenfidenticdAttorney-Client/Work Product
Privile~ed
. I
PROS AND CONS OF APPEALING OR NOT
.'1
APPEALINf THE.FACA DECISION
Appeal
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, Pr0s:
1
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Orily way to undo a ridld.culous decision that will undermine·
President's ability ev'~r again to make First Lady officially
1
in charge of any work J~ffort
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Only way to free th1s ~ask Force (and .other Pres1dent1al
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adv1sory bod1es) from fntenable restr1ct1ons (1nclud1ng
advance public notice lbf all meetings and potential '
disclosure of every do,bument created by or for the advisory
body)
i
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Will make it virtually[ impossible for plaintiffs to seek
further relief in dist·rict court
We have a substantial
Appeals
!bh~nce
of
prevaili~g
in Court of
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We define the agenda o'f·any appeal
.
Appeal could be
II
constr~ed as inconsistent with prior
statements to the pres1
s
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Court of·Appeals migh~ uphold district court decision
thereby making it mor~ of a controlling precedent ~- or make·
it worse
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Reopens issue of secre cy
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Poses risks to working group
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CLINTON LIBRARY PHOTOCOPY
�r
Not Appeal
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Pros:
Allows us to maintain·posture.that we have·not been hurt .in·
any way by district court
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Avo1 s reopen1ng d b a~e 1n th e press
-e
Avoids risk that CourJof Appeals might convert decision of
one district judge intio a powerful precedent
I
Avoids immediate risklto working group
Cons:
Forces plaintiffs to appeal (and right now, they have
obtained no relief)
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Subjects Task Force and any other body including First Lady,
to burdensome restrictiions
. ·
Leaves district courtlin charge of case, and plaintiffs may
seek relief re working group documents and Task Force
"subgroup" meetings . il
.
II
Leaves in place an ab9urd.and burdensome opinion
Makes it difficult to tell Court of Appeals at later time
(or in response to an appeal by plaintiffs) that the
district court's orde~ is problematic
fraJ~
We lose chance to
the issues on appeal and define
public perception of &ase
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CLINTON LIBRARY PHOTOCOPY
�v'
DETERMINED TO BE AN
ADMINISTRATIVE MARKING
INITIALS: V'of DATE: OJ$ l13t fA
.
d6C>CJJ -0816-l=
aaa Co~fiaential
~riyjleged
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Attorney-Client/Work Product
POINTS .RAISED BY JUSTICE DEPARTMENT
AND OBSERVATIONS ON THEM ·
II
Charter
.
1.
I
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The court's order requires the task force to comply with the
FACA charter requirem~nt. This mearis that the President or
a designee must submi~ a letter and proposed charter to the
GSA~- which· generally ~ust approve or disapprove the
establishment of the ~dvisory committee within 15 days~
Once approved, a notic:1e that the cominittee is being
established must be p~blished in the Federal Register at
least 15 days before -bhe charter is filed with the Congress
and the Library of Co~gress, unless the GSA permits a .
shorter time for.caus~.
Comment:
We believe Jhat under the circumstances here and
the timetab]1e set by the President for creating a
health care Jireform proposal, there is a good
chance that :GsA will· approve the charter quickly
1
and waive t~e 15-day requirement for publication
of the charti er. ·in the Federal Register.
1
. 2.
Plaintiffs might arguJI that the working group cannot
continue to meet unti]l the charter is filed and approved.
comment:
Plaintiffs' Jlave not made this argument, and ·it ·
seems a wea~ one. The Court held that the working
group is notl subject to FACA. And the statute
itself says ja charter must be filed prior to any
meetings of ~he advisory committee, or subgroups
or subcommi~~ees thereof. The working group is
not a subgroup or subcommittee of the task force.
1
3.
individual.tas~
Plaintiffs might argue! that
force members
cannot meet together before a charter 1s f1led, because any
such meet1ngs 1nvo,lve !!"subgroups" of t~E! task force.
,
Comment:
"
,
II
Plaintiffs should not prevail on this argument.
The task for1be has not formally or informally
created any 1
~~ubgroups or subcommittees with
responsibili;~y or authority for carrying out any
portion of the task force's work. Moreover, GSA
regulations provide that FACA does not apply to
"meetings of;l two or more advisory committee ...
members conv~ned solely to gather information or
. conduct rese1arch for a chartered advisory
committee, tb analyze relevant issues and facts,
or to draft proposed position papers for
deliberation! by the advisory committee."
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CLINTON LIBRARY PHOTOCOPY
V/
�4.
Under the court's ordef, all task force meetings are subject
to 15-days advance pub:ll.ic notice in the Federal Register.
The 15-day requirement! can be waived under "exceptional
circumstances."
·
Comment:
5.
The Presiden;t's·tight time frame for.receiving a
health care f"eform proposal should constitute the
type of "exc~ptional circumstances" that justify
reducing the!l•15-day notice requirement.· But
advance notipe ·-is. ~equired for every task force
-meeting, whether or not it is the .type of meeting
that must bel open.
.
FACA requires that adv:isory committees subject to the act
must .be "faJ.rly balanced J.n terms of the poJ.nts of VJ.ew
II
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represented and the functJ.ons to be performed by the
advisory committee." Plaintiffs might argue that the task
force here should be r~constituted.
.
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Comment:
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Again, plaintiffs ·should not prevail on this
argument. T~e judge did not rule that the task
force need b~ reconstituted, even though the .
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•
-"balance" re~uJ.rement was addressed at oral
argument. Moreover, this committee is balanced
with respect_l· to the relevant government agencies
that w~ll bei ~harg7d with implementing the
_
resultJ.ng legJ.slatJ.on.
..
"Subgroup" meetings
.
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-1.
Plaintiffs might argue! that the Robert Wood Johnson forums
attended by the First Lady are subject to FACA.
Comment:
il
This argument is frivolous. The Court was advised
of these forhms -- including the scheduled dates
and location~ -- and of the First Lady's role and
nonetheless :~tated that no Task Force meetings ·
subject to F~CA have yet been scheduled.
:1
2.
Plaintiffs might challenge a working group meeting attended
by a task force memberll.
Comment:
3~
Case law sugkests that such meetings would not • be
•
!.
subJect to F~CA for the same reasons the court
found that the working group is not subject to
FACA.
I
· Plaintiffs might ar~ueJ that any meeting of two or more
members of the task fo~ceconstitutes a "subgroup" of the
task force that is sub;o ect to FACA and to the court's order.
The argument would be particularly aimed at meetings of or
attended by the First .Lady and Magaziner, under the theory
that they are the Chai~ of the Task Force and the head of
2
CLINTON LIBRARYPHO TOCQpy
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the working group, are doing the actual work of the Task
Force and are a de facto subgroup.
M
Comm~nt:
Neither FACJ,the.GSA regulations nor.the Courtis
II
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,
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·opinion or order def1ne "subgroup." We contend
that to con~titute a "subgroup,,, two or more
members· of the task force must be·authorized by
II .
the task fo~ce to perform a certain role, and no
.such "subgroup" has been so authorized.
.
4.
.
.
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Plaintiffs might ch~l~enge a working group meeting, or a
meeting·with members df the public, attended by more than
one task force member1
·
.
.
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Comment: . Again, on tlhs issue, we would rely on the GSA
regulations llwhich provide tha_t FACA does not .apply
to meetings ~of two or more task·force members
convened so~ely to gather information, conduct
research, ari,alyze relevant issues and facts, or
draft positilon papers for deliberation by the
advisory co~ittee as a whole.
m~st
It
be joted, however, that the judge held
that FACA ddes apply with full force to meetings
of the task ~force or subgroups .that are solely for
the purpose :!of gathering factual information. In
this respec~, among others, the court's order
conflicts w~th applicable regulations. ·
Our positioJ is buttressed when the meeting is
initiated b~ the working.group or a cluster group
and merely attended,by one or more task force
members, in !Jcontrast, e.g. , to a cluster group
meeting cal~ed by the First Lady.
5.
For a discussion of mJetings between the President and
members of the task fqrce (or also attended by working group
.members), please see dur separate guidelines. Note also the
court's reliance on t~e statement in the Magaziner
declaration that the ~orking group will not make ·
recommendations directhy to the President. We construe this
statement to apply to J\the working group as an entity or . to
individual working grqup members speaking for the working
group as an entity.
;I
Advice regulation vs. factjfinding
1.
Dep~rtmenJ
The Justice
believes that, in practice, it will
be difficult to distirlguish between fact-gathering and
advice formulation, arid that this will make it difficult to
.
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CLINTON LIBRARY PHOTOCOPY
�know which task force ~eetings or portions thereof must
comply with which port~ons of FACA. ·
.
COMMENT:
'
.
:1
.
The court's brder uses ambiguous language to
describe whibh fact-gathering functions are
subject to FACA. We feel strongly, however; that
the court intended to limit full application of
·FACA to thosik meetings at which the task force is
gathering fabts from outside source.
Although thel order also requires that ,;factreporting" meetings be open, we believe the more
reasonable ihterpretation to be that this refers
to "fact-repbrting" to the task force, not "factreporting" by the task force to the President.
Under either II category, however, each meeting is
subject to the 15-day advance public notice ·
· requirement ikxcept under .11 exceptional
circumstance~."
.
~
.
Puolic access to documents ~nd information
1.
l
The court's order cont~mplates that all documents produced
for and received by, o} produced by, the task force are
subject to public discrr.osure under FACA (unless subject to ·
exemptions under FOIA)t
.·
COMMENT:
.
II
·
.
·
We have an argument that task forces created
s9lely for tpe purpose of advising the President
are not "FOI~ agencies" and therefore should not
be required to produce ~ocuments under FACA. This
argument is problematic, however, in light of
prior case law applying FACA's disclosure
requirements to committees advising only the
President.
2.
Documents received from the public by the working group
intake center are argu~bly subject to disclosure because
those documents were, !lin fact, intended to be for the use of
the task force~
J
3 ..
Documents received by ~ra Magaziner might be made subject to
disclosure because of his dual role as a task force member
and the head of the working.group.
4.
Documents produced by ~he work1ng group and g1ven to
individual task force kembers may be subject to disclosure.
.
II
.
COMMENT:
.
.
lj
•
.
.
:
!
-
.
..
.
Wh1le an argpment can be made that the only
documents subject to disclosure are documents
given to the: task force as a whole or intended to
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CLINTON LIBRARY PHOTOCOPY
�• .
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I
be used in c~nnection with work by the task force
as a whole, ~e believe this position would not
likely preva~l~
.
5.
The court's opinion doJs not expressly exclude from public
disclosure any documen~ by which the task force gives advice
to the President, even !!though the court held that meetings
for the purpose of giv~ng advice to the President could not
constitutionally be required to be open.
.
)
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CLINTON LIBRARY PHOTOCOPY
�DETERMINED TO BE AN
ADMINISTRATIVE MARKING
INITIALS: ~Of DATE:D8113/DCf
-PLivile~ed
and Con.~:i:-dential
Attorney-Client/Work Product
~6C>t.Q -C>1Sib-
F
GUIDELINES FOR MEETINGS WITH THE PRESIDENT
TO DISCUSS HEALTH CARE REFORM ISSUES 1
.
1
1.
·Each meeting is conveled by the President.
2.
The persons
meeting are attending in their
individual capacities,!! either as government officials or
members of the Task Fqrce or working group. The persons
attending are not rep~esenting the Task Force or working
group, and do not hav~ authority to speak on behalf of the
Task Force or working :!group.
·
3.
·The persons· attending ![the meeting have been invited by the
President. Neither tlie Task Force nor theworking group has
appointed individuals ~to attend the meeting.
.
4.
The meetings are for the purpose of allowing the .President,
at his request, to ob~ain information and/or advice from the
individuals attending ·II The President does not seek advice
fr9m the group as a wliole, and the group does not form a
.
consensus opinion to ~resent to the President.
5.
No bus1ness of the Task Force or the work1ng group 1s
conducted at these me~tings.
,
.
6.
Those present at the Jeeting have not been designated either
a subgroup or subcominil~ttee by either the Task Force or the
working group.
~
7 •·
No documents will normally be presented to the President
during these meetings. Any documents that are presented
will not be documents produced by the working group for the
purpose of advising the President.
8.
If such mee-tings are listed in the President's schedule,
they shall be described as "meetings with individuals to
discuss health care reform."
attending~the
,
1
.
.
.
II
·
.
.
These guidelines are set forth in response to the
opinion and order of the district court in Association
·of American Physicians and surgeons. Inc. v. Clinton,
Civ. No. 93-0399 (RCL) (D.D.C. ,Mar. 10, 1993). These
guidelines are not intended to reflect the requirements
of the Federal Advisory Committee Act or any federal
regulations promulgated thereunder, and are not
intended to assume the constitutionality of
congressional regulation of meetings for the purpose of
advising, or providing information to, the President •
. CLINTON LIBRARY PHOTOCOPY
�'MAR-12~93 ~RI
15:59
U.S. De)Jartment of Justice
Uitshington, D,C 20530
. Memo~andUin
To:
Vincent Foster
Deputy counsel to the President ,
.
)
stephen Neuwirth
Associate Counsel to the President
From:
Robert E. Kopp
Director, Appellate staff
PRIVILEGED ATTORNEY~
CLIENT AND WORK
PRODUCT MATERIAL
David J. Anderson
Director, Federal Programs Branch
Civil Division
Re:
Compliance Issues and Appeal Prospects in
Ass•n. of Amex-ican Physicians and surg~ons v.
Hillaey Rodham Clinton, et al., No. 93-399 (D.D.C.)
INTRODUCTION"
You asked us to provide you with an analysis of the
issues arising from Judge Lamberth's March 10 Order,
lik~lihood of success of litigation involving them and the
·p·ro~pects of reversing the award of preliminary injunctive relief
to Rlaintiffs on appeal. The memo does not represent definitive
ieg~l conclusions based on exhaustive analysis, but should serve
as dur initial views on the problems you presented· to us
.
I
.
yesterday.
·
.
com~liance
.
. Neither the Federal Advisory Commi tt.ee Act ( 11 FACA") , 5
U~S.C. App. 2 1 implementing General Services Administration
11
(
GSA") regulations, 41 C.F.R. Subpart.lOl-6.10, nor the Judge's
Opinion and Order are models of clarity or provide certain
ans~ers to many of the compliance issues you have raised.
Actions taken in reliance on narrow readings of~these three
sou~ces of guidance pose litigation risks, and ·plaintiffs may
wel~ challenge them through an amended complaint, motions for
ll.
further relief or motions for contempt in the district court.
'IT'
ove*ly broad constructions of defendants' obligations, on th
other hand, may unduly hamper the work of the Task Force.
I It is; in part, . for these .reasons that we strongly recommend
an expedited appeal of the March 10 Order. The Court's Order
rtiNTON LIBRARY PHOTOCOPY
�'MAR~12-93 FRI 15:59
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•
deg~'?
undoubtedly imp~irs the Task Force's work to a~asura~te
and questions over compliance with its less-tha cetta'
'
requ:irements may cloud its efforts with uncomfortable
uncertainty. Hotvever, an expedited appeal may diminish the
1 ike~ihood that the;.e or other plaintiffs vlill file compliancerela~ed papers in the district court, or that.Judge Lamberth will
be inclined to rule on them.
.
#
· . I Even if
•..1e were to file. an expedited appeal and demonstrated
a liKelihood of success on most compliance-related questions,
ther~ is a good chance that plaintiffs will return to the
distlrict court in effort to ensure compliance with FACA . and the
Order. Plaintiffs will likely seek discovery, and it will be
diff[icult to resist such discovery without leaving the public
imp!jession that something is being hidden. The prospect of
discovery requires us to be particularly careful in ensuring full
compliance with the Order's written and implicit requirements.
I The opinion is, of course, favorable in many respects.
All'
clal!ms regarding the working group were dismissed and the Court
recdgnized the constitutional dimensions of the President's
·
effdrt to obtain advice on recommended legislation. Nonetheless,
the !order does place some significant roadblocks in the.Task
Force's effort to continue its work unimpeded, 1 and, because it·
doe~, it offers the plaintiffs a chance to divert the Task
Forde's energies and resources to defending against compliance
root~ons.
·
I We also believe that.Judge Lamberth's opinion poses
.
significant long-term concerns. The Court's ruling potentially
weakens Presidential power by allowing cong~ess to regulate the
prodess by which he and his close advisors receive both factual
and\policy information. The opinion also narrows potential
oppo;tunities for·the First Lady to perform valuable public
se~ice and to assist the President -in the same private manner
all¢wed other ciose government advisors.
believ~tha~
?n balance, we
th7 advantages to taking an
appeal far outwe~gh the rl.sks. As detailed l:>elo'Vl, we
believe that the prospect for success of appeal are quite good.
I
exp~dl.ted
I
r
.
,
.O.ISCYSSION
..
Compliance Issues
Judge Lamberth's order raises four categories of coi!Ipliance
iss'iles: 1) charter and membership, 2) "subgroup" meetings, 3) the
fact-finding vs. advice formulation function and 4) public access
I·
I 1 . We underline those requirements that appear· to us to be
particularly onerous.
2
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LIBRARY PHOTOCOPY
�·MAR-12-83 ffRI 16:00
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to infonnation. Each imposes significant administrative burdens
an the Task Force 1 may potentially delay its work and diminish
its flexibility.
·
·
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Me~bership
Charter and
1.
a.
Section 9(c) of.FACA prohibits·an advisory committee
from meeting or taking any action until a charter is filed with
GSA. Prior to filing a charter, the President or designee must
submit a letter and proposed charter to the GSA's Committee
Management Secretariat in accordance with 41 C.P.R. § 1016.lo:o7(b) (2).
The GSA will, if possible, approve or disapprove
establishment of the advisory committee within 15.days. § 1016. 10!07 (c). Once approved, a notice that the com..ltlittee is being
established must be published in the Federal Register. § 10l6.10j1S(a)(1). An exception for committees established by
Executive Order would not apply here. Id~ Such notice shall
appe ar 15 days before the charter is filed with the Congress and
L~b~ary of Congress, unless the Secretariat pennits a shc:>rter
t1me fo~ good cause.
§ l01~6.1015(a) (2).
These regulat1ons
cou]d effectively bar the Task Force or any subgroups of it ~tQID
working at all for 30 days_,. but this delay could be overcome if
the IGSA is asked to, and does, expedite this process.
1
I b. .. It is unlikely that this moratorium applies to the
·
inter-departmental working group, although the matter is not free
front doubt. Section 9(c) of FACA bars an "advisory committee"
meeting or taking action until the charter is filed.
19 Adviso:l::y committee" is defined to include "s\lbgroups" or
"subcommittees" thereof that meet the requirements of§ 3(2).
Theicourt held, however 1 that the interdepartmental working group
is not an "advisory committee."· Nevertheless, to allow a working
groJp to.begin work prior to the chartering of a just-established
parent advisory committee would be of dubious legality. Under
thejunusual circumstances of this case, we have a reasonably
strcmg argument, however, that neither the Court nor FACA
intended the working groups to stop their work for days or weeks
pendir.g filing of the charter. .
·
from
. I·
c.
However, there is ·a serious question whether, under the
11
Order, a subgroup 1' of the Task Force may meet at all until the
charter is approved and filed. What constitutes a "subgroup" is
disbussed in~ 2(c),· infra. Paragraph 1 specifically enjoins
meetings of a Task Force subgroup until the Task Force as a whole
complies with-FACA, of which filing the charter is.the first
step. While the Magaziner Decl. ! 9 explains that there are no
"formal 11 subgroups of the 'rask Force, neither FACA nor the order
expressly distinguish between.formal and informal subgroups, and
am~eting between Mr~ Magaziner and the First Lady, for example,
mayjbe a subgroup. The Order may. therefore. bar meetings
·/. ·
between members of the Task Force, whatever their puroose& at
least until charter is filed.
.
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.CLINTON LIBRARY PHOTOCOPY
�·NAR-12-93
~RI
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d.
FACA committees must be 11 fairly balanced-in terms of
-r.he points of view represented and the functions to be performed
by the advisory committee." FACA, § 5(2)~ several F.ACA cases
haveJ dealt with this provision and, while the law is not yet
settled, the better view in this District is that plaintiffs
.
gene~rally lack· standing to enforce this provision and that it is
jud~cially unreviewable. This may not prevent these br othe~
.
plai!ntiffs, possibly frustrated by a perceived lack of influence~·
from bringing suit to reconstitute the Task Force. But, in
a.dd~tion to these jurisdictional defenses, defendants can argue
that the 11 fairly balanced" requirement doe.s 11ot require the
seating of representatives of medical, public interest and
insurance organizations on the Task Force·, ·but that the relevant
poirtt of view·and function here is that of the government.
agertcies that will be charged with implementing the :resulting
legislation.
·
2.
Su};>group meetings
It is clear under the court Order that working group
meetings are not subject to FACA and that the fact-finding
meetings of the Task Force'are. The Opinion does not explain
whether meetings of two or more Task Force members together or
wit~ members of the working group or the public are subject to
FACA.
a.
It is·reasonably clear that·members of the Task Force
may attend forums or meetings organized by private groups on
health care without triggering FACA's procedural requirements.
Those requirements apply to meetings of the advisory committee,
§§ ~O(a) (1), (2), not meetings of private .groups attended by FACA
committee members.
.
I b. For the same reason, it is unlikely that a meeting
conrtened by the interdepartmental working group, or one of its
cluster groups, that is attended by a Task Force member is an
· adv:isory committee meeting. National Anti-Hunger Coalition,
whi:ch invol ~·ed working groups chaired by FACA committee members,
supports th1.s conclusion.
· ·
.
. ,. c.
Meetings initiated by m9re than one Task Force member
withmembers of the working group and/or the public, which would
in lall likelihood be informational in nature, might l·aad to a
dif,ferent result. The Order enjoins meetings of 11 subgroups 11 or
"s~bconunittees" until the requirements of FACA are satisfied.
Order, . i. 1. Th.e issue is whether an informal meeting between,
I
to;- example,· the Fl.rst Lady, Mr. Magaziner and Ms .. Rasco
constitutes a "subgroup."
I
I We could argue that the term "subgroup" refers only to
groups of two or more Task Force members that are convened with
so~e degree of formality or structure, and not to chance or
4
CLINTON LIBRARY PHOTOCOPY
�P. Ub
'MAR-12-93 FRI 16:01
informal meetings. ·A GSA regulation, 41 c.F.R. § 10l-6.l004{k),
woul1d. support this view. It provides that meetings of two or
mor~ advisory committee members to gather information or to
anallyze facts is not covered by FACA. \17hile the regulation~
·which would apply as much to the full Task ·Force as to a subgroup
of two or three, is helpful, reliance on it poses a some risk of ·
con~empt. Paragraph 1 of the Orderplainly says that "all fact- .
finding and fact-reporting meetings of the Task Force must comply
full.!y with the requirements of FACA." FACA and the order .could
·be dircumvEmte.d by dividing into "informal" sUbgroups to engage
in :Bact-f.inding and fact-reporting meetings. This may violate ~·
the \spirit, if not the letter of the Order, As a result, it·can
plausibly be araued that two or more members of the Task Force
-canriot meet to dis.ouss factual or deliberative issues unless
.
12uJ:>J ic notice is provided.
.
· ..
. l
d.·.
"Fonnaln fact-reporting meetings described in {c), any
meetings of the Task Force or two or rnore.~embers thereof
involving the formulation of advice, and, perhaps, 11 informal"
subdroupmeetings require public noti.ce, 41 C.F.R. § 1016.1015(b) requires notice of 1.5 calendar days prior to the
meeting unless "exceptional circumstances" exist tha:t are stated
in the Federal Register. What such circumstances might be are
not I stated in the GSA regulations. That 15 days_ (or really any)
notice is required prior to a fact-reporting meeting ssriously
hampers the ability of the Task Force to produce prompt
recommendations to the President. Such notice prior to
deliberative meetings, which would presUlilably occur near the end
of the process, might not be as.burdensonte. Nevertheless, under
these circumstances, thet·e would be an understandable inclination
to ~xercise this e:k:ception frequently, presenting fertile ground
forllitigation. Challenges might be filed in order to disrupt
the Task Force's work. A strong defense lies in the Presid~nt's
imposition of a lOO-day time-table, although we may need explain
. why I such a compressed time.-table is needed in somewhat n1ore ·
detail. Defendants~ chances of prevailing would likely depend on
the\nature of the meeting, how much less than 15 days notice was
provided and· how often the exception was exercised. Defendants
might have a better chance of prevailing on such cases involving
shqrtened notice to deliberative meetings beqause the public ·
would not be able to attend, but, again, these m~etings might be
the easiest ones to provide full notice.
'
'
e.
Meetings of two or more Task Force members for either
fact-finding or deliberative purposes may be subject to the
Ord~r.
It is possible to imagine 1 however, meetings of Task
Forbe members that fall into neither category. If the First Lady
and! Mr. Magaziner meet to discuss operational or logical issues,
sue~ as when to schedule a meeting or the general progress of the
working group, it is doubtful that FACA would apply. FACA's
legislative history suggests that operational groups or meetings
are not covered by FACA.
·
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CLINTON LIBRARY PHOTOCOPY
�·MAR-12-.93 ER I 16 : 02
Finally 1 it would seem likely that, at the end of the
process, the Task Force as a whole br a subgroup of it, would
pres~nt its advice and recommendations to the President. such a
meeting would be a meeting of the advisory committee and would,
theria fore, require public notice.
·
f.·
I These meetings also raise a tricky issue aboutpublic
access. It may well be that these meetings would not.· involve
fact]-reporting or advice formulation, but, instead, 11 advicereporting.11 .The Order is not clear onwhether public access to
suchl a meeting would be required .. It is very difficult to
believe, even following the reasoning in Judge Lamberth's
opin~on, that FACA could constitutionally require public access
to m6etings in which the President receives advice. Public
inte~est may-be greatest in meetings between the Task Force and
the ~resident, and, it is, therefor~, more likely that a lawsuit
or al motion for contempt by plaintiffs would be filed in this
cont ext. Defendants' chances of prevailing in such litigation
would appear q1.1i te strong. . ·
1
3.
Advice Formillation vs ...
Fact~F.inding
The Court's Order affords public access to Task.
reporting or fact-finding meetings, but not to those
advilce formulation. Perhaps the most difficul_t part
witH the Court's order is trying. to determine if and
gistiinction can be drawn in free-flowing meetings.
Force fact~
involving
of complying
how such a
I Perhaps it is possible for the Task Force or subgroups
the~eof
to structure their meetings in a way such that some are
pla~nly intended to involve ~act reporting, such as.meetings
in
which the public is invited to speak, and some clearly involve
del~berati~n.
The problem is
dealing with meetings likely to
involve both.
in
Paragraph 2 of the Order, which refers to meetings scheduled
for the "purpose" of·formulating advice, offers a partial
solution. Meetings may well be called, and so described in the
pubiic notice, for the purpose of deliberation. Factual
·disqussion that .is part and parcel of the deliberative process
would not violate the Order. Other meetings, however, may not
hav~ such a specific.agenda. ,There is.precedent in the FOIA
conte,xt that, if facts and opinion are inextricably intertwined
in
inter-agency document such that deliberative material
can~ot easily be redacted, the entire document may be withheld.
Thelproblem of possible "intertwining" seems much more likely in
oral discussions. Onder such circumstances, it is hard to ·
imagine the court holding defendants in contempt if the Task
Force made a·good faith effort to segregate meetings.or portions
of ~eatings between fact finding and deliberation, but could not
do ~o in other portions without completely disrupting the
gathering.
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CLINTON LIBRARY PHOTO~OPY
�- MAR-12-93 FRI 16:03
4.
Public Access to Information
a.
Section lO(b) requires documents prepared by and
furnished to the Task Force to be made publicly available. An
argUment can be made that the "subject to section 552 of Title 5"
language. in§ 10(b) exempts non-agencies such as.certain
com~onents of the Executive Office of the President, ahd the Task
Forde, from FACA's document access requirements. Such a result
wou]d exempt many, if not all, Presidentially-established FACA
I
'
committees from these .requ1rements and would be contrary to .
int~nt of Congress. - After all, if open committee meetings are to
-be truly·meaningful for the public, interested. persons should
·. hi:wEi access t·o the documents at issue in these meetings. ~
result,·we believe that Ta~k. E.orce docU:ments, except those
protected bv a FOIA privilege other than deliberative process, 2
arelsubject to pUblic inspection "until the Task Force ceases to
exist. 11 § lO(b). Non-privileged documents received in the
11
in-take center, n !1agaziner Decl. fj[ 22, for example, are subject
to public disclosure.
..
. . I b. . . Although the. First
Lady and the. other Task Force
.
serve in public capacities other than on the Task Force,
it is likely that most of the documents that they have received
arelreadily identifiable as having been sent to them because of
their role on the Task Force. Indeed, Magaziner Decl. ~ 22
sta~es that :mail sent to the First Lady and Mr. Magaziner on
·health. care issues has been handled by the "intake center. 11
These documents would be subject to disclosure.
mem~ers
- I c.
Documents received by-the :First Lady during her
meetings •.vi th outside groups, the Hill or the working group are
sub]ect to disclosure as well. It would be difficult to argue
tha~ she received these documents in her capacity as First Lady
rather than her capacity as Chair of the Task Force.
I d. .- Documents received by Mr. Ma az iner dur ·
r
meetings presen sa somew.a more ~ ~cult issue. Documents
received or produced by the work1ng group are generally not .
sub]ject to disclosure because the working group is not a FACA
committee. ~ ~ ~ e, infra. When they are furnished to or
mad~ directly available to the Task.Force, they become Task Force
documents subject to disclosure. Mr. Magaziner serves a dual .
rol~ as Task Force ruember and head of the. working group.
Whether
doc¥ments he receives or produces are subject to disclosure, such
as the decision tree he has prepared for the President, may turn
on fhe capacity in which he received or produced the document.
2
Th~
Office of Legal Counsel has concluded that ager,cy
documents transmitted to a FACA committee. would be subject to
del~berative process privilege protection if sought from the Task
Force ..
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CLINTON LIBRARY PHOTOCOPY
�.. ffAR-12-93 FRI 16:04
The 1proble1n is that Mr. Magaziner serves in two capacities at
once 1 and it would be difficult t.o argue that documents he
produces or -receives as working group chair are not effectively
in His possession as Task Force member as well. Such documents,
the~efore, are likely to be subject to disclosure.
I e.
Documents currently in the possession of the working
.group are likely not considered Task Force documents and are not
subjject ·to disclosure. However, § 10 (b) of· FACA provides that
documents "made available to" or 11 prepared forn the FACA
com:rrlittee must be disclosed. This suggests that docu.ments need
not jbe in the FACA committee's physical custody to be .
·
disclosable. Neither can it mean, however, that all staf,f
docJments are disclosable. Even if the Task Force. does not.
posdess a document, it would seem .that the Task Force must
disdlose documents that the Task Force has 1) specific knowledge .
~ere
re ared.for them o~ 2 s ecific knowledge are available.to
them and 3 .access to· them. Whether we could prevail in a
cha]lenge in
he position that only documents
possessed by the Task Force must be made public is questionable.
docume~ts
I f. · Finally 1 those working group
which have not
·
been "made available to 11 or ''prepared for" the Task Force are not
sub]ect to. disclosure. The working group is neither a FACA
committee nor a FOIA agency. Working group documents prepared by
executive branch agencies are, however., subject to FOIA requests .
·on the agency if the document remains in the agency's custody and ·
control. Such documents may be withheld pursuant to any FOIA
·
privilege. Deliberative process may, however, be difficult to
ass~rt because that privilege applies, in part, to "inter-agency"
documents, and, as noted, the working group is not an agency.
AQpellate Prospects
While prospects for success cannot, of course, be predicted
with any certitude, we believe that the advantages of appeal
out.Weigh the risks. We believe tha't. our statutory argument is
farlstronger than the district court recognized an<;1 that we have
a strong basis for asserting that _the court erred in believing it
was jbound by the Title 5 definitions of ''officer" and "employee. 11
With respect to the constitutional argument, the D.c. Circuit is
particularly sensitive to Executive Branch prerogatives a_nd will
· certainly recognize the seriousness of the issues presented. In
short, there is a very good prospect that the o.c. circuit may
rem6ve doubts cast by the district cou:r:t on the status of the
Fir~t· Lady ar1d the scope of Presidential privilege.
I
The worst case scenario, of course: is that the D.C.
Circuit would find both our statutory and cons~itutional
arg~ments unpersuasive and would also disagree with the district·
court's analysis .of the working group issue.
Even under this
sce.~ario, however, it is unlikely that the court would order that
8
CLINTON LIBRARY PHOTOCOPY
�·MAR-12-93 FRI 16:04
•
v
working group meetings be opened to the public. Even assuming
the worst, the court would almost certainly remand the case to
the ~istrict ctiurt for further-factual development as to the
relation of the working groups in relation to the Task Fo!ce. As
noted, however, we think that our chances of totally losing on
~othl the sta~utory and constitutional issues is small~ · The. .
JUdg~s who w~ll te·most troubled by our statutory argument w1.ll
be those most likely to support us on the constitutional issues.
convkrsely, those least inclined to a broad ruling on executive
powers may be those most willing to interpret the statute broadly
to cbmport with congressional purpose.
I .
.
cc: Judge Webster Hubbell
Nancy McFadden
9
CLINTON LIBRARY PHOTOCOPY
�...
DETERMINED TO BE
ADMINISK~TIVE MARKING ..·
INITIALS:
DATE: Q?; /13101
d,OO(Jz -Oct:; I D- F
~vileged
and Confidential
THE PRESIDENT'S TASK FORCE ON
NATIONAL HEALTH CARE REFORM
CHARTER
I.
Official Designation
This task force shall be designated the "Presi~ent's Task
Force on National Health Care Reform," as .set forth in the
I
•
.
,
Statement of the Pres1dent, dated January~25, 1993. See 29
We~kly Compilation of Presidential Documents 96 (Feb. 1, 1993).
IIl
Membership
.
.
.
.
·· I This Task Force is chaired by Hillary Rodham Clinton, the
First Lady, who in this capacity is assisting the President in
th~ discharge of his.duties and responsibilities.
See 3 u.s.c.
§ iL05(e).
The other members of the Task Force are Secretary of
the Treasury Lloyd Bentsen; Secretary of Defense Les Aspin;
I·
.
..
.
Sefretary of Commerce Ron Brow_n; Secretary of Labor Robert Reich;
Secretary of Health and Human Services. Donna Shalala; secretary
ofiVeterans Affairs Jesse Brown; Office of Management and Budget
Director Leon Panetta; Assistant to the President for Domestic
Po~icy Carol Rasco; Assistant to the President for Economic
Policy Robert Rubin; Council of Economic Advisors Chair Laura
Ty~on; anc;I Senior Advisor to the President for Policy Development
Ira Magaz1ner.
I This membership includes those officials who presently have
principal responsibility for the administration and regulation of
go~ernment-related health care services; for developing domestic
an~ economic pol~cies that affect, and are affected by, public
and private health care systems; and for advising the President
onlhealth care and economic issues.
.. .
III. Objectives and Duties
~~~~.u~~s~to
build on the work of the
~~~~~~~~~~%~~~~;~~~~~ s'tion in the area of health c e
~
ze informa 1on pro
e
y federal,
sta e and local governmental entities and employees, private
organizations and individuals on the state of existing health
cate policies and delivery services; to assess possible
alternatives to such policies and services; and to recommend to
th~ President within the first 100 days of his Administration a
pr+posal for comprehensive health care reform· legislation to be
enacted by Congress.
I
The Task Force shall not delegate its responsibilities to·
subcommittees or subgroups.
I
7
CLINTON LIBRARY PHOTOCOPY
�IV.
Timing and Duration
I The creation of the Task Force was announced by the
·President on January 25, 1993. The Task Force will terminate on
May 30, 1993, unless terminated earlier by the President. This'
charter is subject to renewal.
V. · Official Reporting and Agency support
The Task Force shall report to the President. Support shall
be provided to the Task Force by the Executive Office of the
President, the Department of Health and Human Services, the
Department of Defense, the Department of Veterans Affairs, the
Department of Labor, the Department of Commerce, the·Department
ofj Justice, the Department of the Treasury, the Office of
· ,
Mapagement and Budget, the Council of Economic Advisors, and
·
Congress.
.
~·
n
· I Mr. Magaziner, the Senior Advisor to the President f o £
·· ·
PoLl. icy. Development, . leads an interdepartme. ntal working gro . that
isj gathering information for, and will provide .information to,
the Task Force. The working group consists of government
employees and is consulting with a wide range of citizens in the
public and private sectors. The Task Force, in turn, will review
in!formation provided· by the working group and make
rebommendations to the President.
VI.
Estimated Costs
The estimated cost of the~sk ~rce is expected to be below
$100,000. 'Phe total tmmher of map-hours to be devoted hy task
~forcg members to ~ork of the t~k f~ce·c~t he estimat~d
· I g~
.-J..ft=6_.;_~
VII. Meetings
The Task Force shall conduct meetings as necessary. The
Task Force has not yet met, and as of the date of the filing of
th!is Charter nomeetings of the Task Force have·yet been
scheduled.
cAYJ
* r-ec;v H 6Q
a. * *
.
This Charter is filed~ the order of the district
court in Association of American·Physicians and Surgeons, Inc. v.
C~inton, No. 93-399 (D.D.C. Mar. 10, 1993). The Task Force was
ndt established pursuant to the Federal Advisory Committee Act, 5
u.s.c. App. 2, because I do not believe that the Task Force is,
CLINTON LIBRARY PHOTOCOPY
�Olf may constitutionally be, subject to the Act. .I reserve the
right to withdraw this Charter should the order of the district
cdurt be reversed or vacated.
I
Filed this
day of March 1993.
William Jefferson Clinton
CLINTON LIBRARY PHOTOCOPY
�P. 02
U.S. Department of Justice
DRAFT.
Memorandum
To:
ATTORNEY-CLIENT PRIVILEGED/ATTORNEY WORK PRODUCT
vincent Foster
Deputy counsel to the President
Stephen Neuwirth
Associate Counsel to the President
From:
·David J. Anderson
Director, Federal Programs Branch
Civil Division
Re:
Issues Relating to the Document Disclosure Provision of .
the Federal Advisory Committee Act _____________________
.
.
llou have asked that we analyze the obligations of the Task
Force\ on National Health care Reform to make documents available
to the public under the provisions of the Freedom of Information
Act (1 1 FOIA 11 ) and the Federal Advisory Committee Act ( 11 FACA 11 ) .
The issues are specifically raised by the Harch 17 request for
docum~nts by two of the plaintiffs in. Aroer~can Ass'n of
Physicians and Surgeons, but we canvass the area more
comprehensively below.
~ection
.
lO(b) of FACA requires public disclosure of all
recor~~ "made 'available to or prepared for or by" an advisory
colilmittee, unless exempted from disclosure. Accordingly,. there
is a two-part process for determining what documents must be
relea~ed under§ lO(b).
First, it must be decided whether a'
givenirecord is a Task Force document. Second~ a decision must
be made whether to t.,ri thhold these ·records and, if so, under. what
FOIA exemption." Of particular concern is the question of the
extent to which the·Task Force may withhold documents under the
delib~rative process privilege of FOIA exentption 5 or under a
constitutionally-based Presidential privilege.
.
A.
I
.
P~ocedure
.
.
.
for Responding to FOIA Requests
me~orandum,
is discussed in the accompanying
the D.C.
in Food Chemical News v. Department_of Health and Human
servides, 980 F.2d 1468 (D.C. Cir. 1992), held that parties are
not required to file a FOIA request to obtain non-privileged
docum~nts under § lO(b).
An advisory committee has an ·
affi.rntative obligation to make its non-privileged documents
publi9ly available without such a request. If the Task Force
·presently is not in custody or control of any privileged
.
Circu~t
CLINTON LIBRARy PHOTOCOPY
�·MAR-24-93·WED 11:42
documents, the Task Force need not respond to the FOIA request as
a :tecz:hnl.cal matter, other than, perhaps, .t.o report that
resp~nsive materials are located at a given location for public
revi~w.·
·
I
'
The Food Che:rnical· News court,· however·, ·strongly indicated
that a FACAco:m..'"ll.ittee can require a FOIA request for "those
materials that the agency reasonabiy clai:ms to be exempt from·
discJlosure pursuant to FOIA." Food Chemical News, 980 F.2d at
14 69 .I
Denial of su·ch a ·FOIA request then may trigger an
admirtistrative appeal process that may . culminate in federal court
•
• I
•
.
llt1.gat1on.
t~
. \Depending on the numbers of documents
which plaintiffs.
are entitled under§ lO(b), the Task Force can (although is. not
requi\red to) simply send plaintiffs the ·requested documents.
Alter,natively, the Task Force could decline to .produce any
.docum!ents under FOIA and simply advisethe requestors that all
Task 1
IForce documents are available in a given location. Or, the
Task 1Force could send certain documents to the plaintiffs as a
court esy (for example, the charter of the Task Force) and direct
the pllaintiffs to the document reading room for all other Task
Forc1 materials.
. ·
.
.
.
1
the Task Force intends to .withhold privileged documents,
a response should be provided within the requisite ten day
perioa. 5 u.s.c. § 552(a) (6} (A). That response should generally
identli.fy the sorts of documents responsive to the request which
are withheld and the grounds for doing so. If the Task Force
withhblds any documents, it should notify plaintiffs of the
procedures for an administrative appeal of this decision. The
White\House component to which the Task Force is "assigned" will
not have regulations governing FOIA, because it will not be FOIA
agency. rn this case, there is no rea.son why it cannot borrow
the appeal procedures of another component that is subject to
FO!A. Under 5 u.s.c. § 552(a) (6) (A) (~i), the Task Force would
have to decide any such appeal within ·twenty business days.
Normally, plaintiffs would not be aDle to challenge withholding
of doeuments in court until they had exhausted this administrative appeal process. See Oglesby y. Department of the Arm:y,
920 FJ2d 57 (D.C. Cir. 1990). Given the time frame involved,
howev~r, plaintiffs might seek judicial review prior to .
exhausting their remedies by arguing that~ otherwise, they would
be denied meaningful relief.
·
[f
1
.
B.
..
AJplicability of Section lO(b) to the Task Force
I
.
An argument can be made that the "subject to section 552 of
Title
language of § lO(b) exempts non-FOIA agencies 1 such as
certain components of the Executive Office of the President to
which [the Task Force may be 11 assigned" and, thus, the Task Force
itsel:6 from FACA's .document access requirements .. such a result
\5"
2
�·MAR-24-93 ~ED 11:43
.l
would .exempt at least all Presidentially-E~stablished FACA
committees assigned to non-FOlA offices from FACA's document
acceds provisions. We believe that such c::t position would not
ul ti~ately prevail. Cf. Food Chemical Nev7S, 980 F. 2d 1468. · In
the :Dirst place, such a result would be contrary to the intent of
congress to open advisory committee deliberations to the public. ·.
Nor Jould it make much sense fqr Congress to require such FACA
comm~tt.ees .to conduct open meetings, but a.llow them to shiE:ld
thei~ documents from the public. If open committee rneetings are
to b~ truly meaningful for the pUblic, interested persons should
presumably have access to the documents at issue in these
meeti!ngs. See Food Chemical News, 980 F.2dat .1472. As a
resul1 we conclude that Task Force documents, except those
t,
protected by a privilege, are subject to public inspection "until
the
tsk Force ceases to exist.n
c.
Scope of Section lOCh)
1
I
~he
·
·
dlff~culty
§
lO(b).
1 n.app 1 · · § 10( b ) t o the Task Force ar i ses
y1ng
in cohstruing the requirement that records "made available to or
prepared fer" the Task Force be subject to disclosure. FACA's
legistl.ative history offers no interpretive guidance and no cases
have healt with the question. The issue is further confused by
the fact that Task Force members may act in multiple official
capac~ties.
In the cour~e of their other duties, Task Force.
members undoubtedly rece~ve documents that might be relevant to
the work of the Task Force. Section lO(b) cannot logically
extend to all materials in the possession of individual Task
Forcelmembers which might relate to health care reform issues.
Nonetheless, de~ermining in what capacities Task Force members
act when they receive such.documents may not .be a simple task.
I
1.
I
Documents in the Possession of the Task
.
.
Fore~
~
As an initial matter, it seems clear that any documents in \
the possession of the Task Force as a group are "available to"
\\
the T~sk Force. Magaziner Decl. ~ 22 states that mail sent to
the First Lady and Mr. Maqaziner on health care issues has been
·handled. by the 11 intake center.'' This inta}:e center is apparently :
part
the Task Force's office. Accordingly, we believe that
documEbnts stored within this Task·Force repository are "available
to" t~e Task Force and subject to§ lO(b), even if the Task Force
. members have· not read the·m.
*
·
\ ·
of
.
a~y
Jimilarly,
records. that have actually been distributed
to all Task Force members in their Task Force capacities are
subject to disclosure, unless privileged. such records might not
be housed in the intake center, but any documents that have been
in th~ possession of each Task Force member, even if temporarily,
are T~sk Force documents, subject to disclosure unless
privi]eqed.
3
r
CLINTON LIBRARY PHOTOCOPY
\1
�·MAR-24-93 WED 11:43
2.
pocuments in the Possession of Individual Task Force
Members
A more di.:fficult issue is presented when documents are (or.
have been) in possession of s~rne, but not all, Task Force
Members. As a preliminary matter, records made available to Task
Force members in their separate capacities. as high-ranking
govetnment officials should not be regarded as Task Force
I
documents. We _would expect, for example, that :most health care
related documents made available to the First Lady and Ira
Magaziner were furnished to them .as either a member of the Task
Fore~, or, in Mr. Magaziner's case, head of the working group.
It:m~y well be, however, that many health care related documents
made \available to other Task Force members, such as secretary ·
Shalala, were furnished to them in their non-Task• Force
I
capacities.
That being said, an argument could be made that § lO(b)
applies • only to documents provided to the rask. Force as a whole
I
-·that ~s, to every Task Force member. Section lO(b) refers to
docUltients made available to the "advisory committee," see FACA, §
3 (2.) ,\'rather than, for ~xample, "advisory conuni'~tee meinbers. '1 To
some extent, this quest1on parallels an issue d~scussed
previbusly about whether some, but not all, TasJ.: Force members
douldl meet without pub! ic notice. We expr1::ssed concern that
-dividing the Task Force into _informal "subgroups" for meetings
mightl be seen as circumventing FACA and. the Court's .Order.
Similarly, if an advisory committee could :·:;hield its documents
simply by refraining from distributing the1n to all members, the
statutory goal of openness would arguably be frustrated.
I
.
·
·
·
To b e sure, one could h ypot h es~ze a typ~cal" FACA comm1.ttee
in which individuals representing private interests ("balanced 11
out in the committee as a whole) each receive documents from ·
their\.interest group allies containing facts and evidence for
discurpsion purposes. Although th~ documents are not generally
circu+ated, it is not difficult to assume that congress would
have intended the public to have ·access to such documents so that
it could determine the· extent to' which private interests were at
work bn the committee. The better view, therefore, is that
docunubnts :made available to one or more Ta!;k Force members are
Task force documents as such .documents :may play a role ·in the
Task :force's deliberations as a whole. As we discuss below, many
such documents may be subject to a claim oi' privilege.
11
I
3.
I
.
Working Group Documents
.
'fhe working group has been held not tc• be a FACA committee
and is therefore exempt from the document disclosure provision of
FACA. I Documents created or received by the working group are not
covered by § lO(b). Nonetheless, any working group documents
which are prepared for or made ·available to the Tas_k Force are
4
CLINTON LIBRARY PHOTOCOPY
�P. 06
"MA8-24-93 WED 11:44
subject to§ lO(b). Thus, to the extent the working group
forw~rds any materials to the Task Force for its consideration,
I
those documents must be ~eleased, unless privileged.
4.
.Documents Availableto Mr. Maga:ziner
Documents received by Mr .. Magaziner present a somewhat more
difficult issue, because Mr. Magazirier serves a dual role as Task
Force member and head of the working group. In order to preserve
the ¢onfidentiality of working group documents, it will be .
nece~sary to draw a bright line between those documents received
by M~. Magaziner
his capacity as head of the working group,
and those made available to him as a Task Force member.
in
favo~
Mr~
.
\we recommend drawing the line sharply in
of
Magaziner 1 s capacity as head of the working group. Specifically,
we b~lieve it should be presumed that Mr. Magaziner receives all
·docurrients in his capacity as head of the working group unless. he
takes affirmative steps to make such materials available to the
Task \Force. Cf. National Anti-Hunger Coalition v. Executive
Commi,ttee of the President 1 s Private Sector Survey on Cost
Contr'ol, 557 F. Supp. 524 (D.D.C. 1983) (FACA committee members
chair'ed task forces found not to be covered by FACA) • Such a
view lis supported by the fact that the work of the Task Force is
far mbre linlited than that of the working qroup. Most of Mr.
Magazliner 1 s day-to-day dealings apparently involve the working
group\ and not the Task Force itself.
.
·
o. Availability of the Deliberative Process ·Priyilege
bnce it is determined that a docu.."!lent is a Task Force
it may only be withheld
if it\ falls within a FOIA exemption. The question has arisen·
whether the Task Force may withhold under ~i lO(b) materials
cover~d by the deliberative process privile~e bf FOIA exemption
5. I~ his order, Judge Lamberth assumed, ttrithout a·nalysis, that
the deliberative process privilege does apply to advisory ·
committee documents. This assumption provided the basis for his
findi~4 that § lO(b) did not violate the separation of powers as
appli~d to the Task Force.
docum~nt within the meaning of§ ·lo(b),
I
1.
Application of the Deliberative
~recess
Privilege to
_ Advisory Committees
\
· quctge Lamberth 1 s holding marks ~ departure from views
expressed in·other cases in this District as well as the position
taken
the Department of Justice that the deliberative process
privilege does not apply to advisory committee documents. The
worditig of § lO(b) itself suggests that Congress did not intend
to perttit committees to withhold deliberative materials. Section
10 (b) !specifically requires advisory coltll!littees to release their
"draft s" and "working papers." These materials are per g
\by
1
. 5
- CLINTON LIBRARY PHOTOCOPY
�P.07
·MA8-24-9~ WED 11:45
~·
del~berative,
and therefore conqress could not have intended to
Exemption 5 itself only
appllies to "inter-agency'' or 11 intra -agency" documents. since an
?J.dvilsory ccnunittee is not an agency, it is doubtful that
Exemption 5 applies to documents prepared by an advisory
.
comm!ittee. In addition, the entire purpose of FACA,. as evidenced
by the legislative history, is to open up the deliberations of
advi sory committees to public scrutiny.
pe~it withholding under Exemption 5.
1
Distri~t
\Finally, two judges in the
of Columbia have
·
this issue. In Wolfe v. Weinberger, 403 F. Supp. 23$,
.242-3 (O.D.c. 1975), Judge Richey explicitly held that Exemption
5 do~s not apply to advisory committee documents. More recently,
- JudgJ; Joyce Green ,described as "entirely unpersuasive" the . ·
ar~ent that the deliberative process exemption may shield
advisory committee documents. ~ashington Legal Foundation v.
Depa~tment of Justice, 691 F. Supp. 483; 495 (D.O.c. 1988), aff'd
sub nom. oh other grounds Public Citizen v. Department of
Justice, 49l u.s. 440 (1989).
cons~dered
\rn litigation, the Justice Department has consistently taken
the 1=1osition that advisory committees may not withhold .deliberative \documents under E>cemption 5. This is the position the
·
Department took before the D.c. Circuit in.National Anti-Hunge:l:.:
Coal~tion v. Executive Committee of the President's Private
Sectdr survey on cost control, 711 F.2d 1071 (D.C. Cir 1983) • . In
the washington Legal Foundation case, the Department argued this
pos i tlion in both the District court and the Supreme Court.
Estab lishing this point was critical to. our argument that the
·appli cation of FACA to Presidential commissions was an
unconstitutional infringement on Executive pov1ers. We argued
that,\ beca~s7 FACA ~oe~ no~ permit invo?ation of. the deliberative
process pr~v1lege, ~t 1nfr1nges upon th~s Bxecut~ve power when
applibd to Presidential commissions.
1
1
1
I
2.
\
.
.
.
APpl1cat1on of the Del1berative I:rocess · Privilege to
the Task Force
While we therefore disagree with Judg~ Lamberth's view of
the applicability of that part of·exemption 5, we reach the same
non-d~sclosure conclusion by a different route.
The other side
of Judge Lamberth's exe~ption 5 coin is that separation of powers
requires recognition of a deliberative process privilege in the
conte~t of a presidential advisory committee. ~ United States
v. Nixon, 418. u.s. 683 (1974) .,
.
.
I .
.
. .
.
· .
There are three purposes for the delll:·erat1ve process
privi~ege: 1) to encourage open, frank discussions on matters of
I
po11c~; 2) to protect aga~nst premature disclosure of proposed
polic~es before they are adopted and 3) to protect against public
confu~ion that might result from disclosure of reasons and
ratiotiales that were not in fact ultimately 'the grounds for the
I
I
.
6
CLINTON LIBRARY PHOTOCOPY
�agency's action.· Russell v. Department of the Air Force, 682
F.2dll045, 1048 (D.c. cir. 1982). Applicetion of the privilege
.to T~sk Force documents should reflect these policy
considerations.
~In
_
brief, the deliberative process. privilege applies t6
matelfials thatare both "predecisional" and "deliberative ... ·EPA
v. Mink, 410 u.s. 73, 88 (1973); Wolfe v. Department of Health
and Human Services, 839 F.2d ~68, 774 (D.C. Cir. 1988) (en bane).
The former requirement is easily applied in this context, and the
D.C. jcircuit has held a document to be deliberative if it
"ref~ects_ the give-and-take of_the consultative process."
Access
Repo~ts v. Department of Justice, 926 F.2d 1192, 1195 .(D.c. Cir.
1991 )j. Generally, :factual ma~erial. contained in ~ deliberat~ve
docu~ent must be d1sc1osed Whlle op1nion can be w1thheld.
M1nk,
410 q.s. at 88. Yet, the rule cannot be applied mechanically.
Wolfe, 839 F.2d at 774. When release of the factual materials
"wou~d expose an ~gency's decisiortmaking process in such a way as
to d~scourage candid discussion within the agency and thereby
. underjmine the agency's ability to perform its function," the
factual material may be withheld. Quarles v. Department of the
~~\ ~93 ~.2d 390, 392 (D.C. Cir. 1990) (q~oting Dudrnan
Commun1cat~ons ColJ>. v. Department of the.../\lr Force, 815 F.2d
1565,j.l568 (D.C._ cir. 1987)).
The same is true if ·factual
infonnation and opinion are so inextricably intertwined that they
_
ca~noit be segregated. _.
/
_
1It is difficult to discern which Task Force documents are
subjebt to deliberative process privilege :Ln the abstract.
Plain:ly, however, Judge Lamberth 1 s motivating concern about
confi~entiality of the advice formulation process suggests that
docurn~nts prepared. by the Task Force itself. for-purposes of its /l
delibbrations designed to arrive at recommendations for the
/ .
President would be privileged. It would be anomalous to permit
'
the T~sk Force to deliberate in private but then require it to
I.
jl.·
release the substance of those deliberations in writing. Indeed, ' ,. (/
' r:ij ·~
'v/
such documents may well be subject to a clctim of presidential
commuhications privilege, but .Judge Laml:>ert~h' s implicit
i;l/:·
recoghition of such a privilege in his constitutional analysis of ' :
the advice-formulation work of the Task Force does not require
the Task Force to made a formal claim of it .
.
. 1
•
•
•
:
rhe del~berative process prl.Vllege WOl;ld also apply to /~
certain materials provided to the Task Force by other Executive
Branc~ officials. In the same opinion that concluded that a FACA
committee could not generally claim deliberative process .
prote?tion over its documents, the Office cf Legal Counsel·
~concluded that agency documents transmitted to_a FACA committee
·
would! be subject to deliberative process privileg~ pr?tection if ~
sought from the Task Force. Moreover, the D.c. C1rcu1 t has held :'1
that 9-gency materials covered by the deliberative process
. , 11.
privilege retain their privileged status even after they have
· ~)
7
CLINTON LIBRARY PHOTOCOPY
�·MAR~24-93
.
P. 09-
WED 11:46
.
\
::
! i
been disclosed to an advisory committee. Avi?ttion Consumer
j\
1 j,
Action Project v. Washburn, 535 F.2d 101, 107 (D~C. Cir. 1976) .
\~he
·
situa~ion
most difficult
is presented by deliberative
•
created by the work~ng group for the Task Force. Under
FACA~ as soon as the working group makes, for exarnple,an
analtsis 6f ~olicy options available to the Task Force, they are
subject to disclosure. Because the working group is not an
agend:y their matet·ials would not normally be considered to be
"int~a- or inter-agency" for purposes of the deliberative process
privilege.
·
mater~als
I
It is not entirely clear whether the court has left an
· open±ng for such an argument. In one of the most confusing
pass~ges of his opinion, Judge Lamb.erth stated:
Section lO(b) is also 6onstitutional since the
deliberative process exemption of the [FOIA] will allow
the advisors the confidentiality they need to enable
the President to perform his obligations. ·This section
also addresses the product of the working group as all .
··materials prepared for as well as by ·the Task Force
lshall be made available to the public. Thus, the ·
~ublic intere~t in erisuring that special interests do
'not overly affect Task Force or working group
activities \vill pe preserved.
~p.
(e~phasis
·at 25-26.
in original.). Judge Lamberth
probably did not specifically consider whether the deliberative
process privilege would apply to working group documents that are
made available to the Task Force because he accepted Mr.
Magazi.ner 1 s statement that such materials \muld be factual, and
thus hot-ordinarily subject to the privilege. That admittedly
does·not explain the third sente~ce of the paragraph. Withholding working group documents presented to the Task Force would
not·n~cessarily impair the pUblic's ability to ensure that
sp~ci~l interests do riot overly ~ffect the Task Force or the
working group. Public disclosure of docume!nts .presented by the
publi6 to the .Task Force or working group would serve that
purpo1e.
·
·
Slip
If, as Mr. Magaziner has suggested, dccurnents presented to
the Task Force from the working group are factual in nature, they
are presumptively disclosable. However, depending on the
.
I
.
.
1
\
In 1976, Congress amended FACA expr,:?.ssly to reverse the
Washburn Court's ruling that an advisory committee may close its
meetings to conduct deliberations. However, these amendments do
not d~sturb the Court's separate holding that an agency's ·
·
delibdrative documents remain privileged in the hands of an
advisdry committee.
8
CLINTON LIBRARY PHOTOCOPY
�·MAR-24-93 WED 11:47
it is quite possible that the pl:·esumption can be
overcome. If these documents are factual, but reflect the
exerbise of judgment over what facts are relevant and worthy of
reporting, deliberative process can be claimed. See Qyarle2, 893
F.2dlat 392-93 (cost estimates prepared by the Navy are
deliberative). If other documents go further and contain policy
opti6ns or even recommendations, the argument· in favor of
clai~ing deliberativeprocess is even stronger.
Public
- disclosure could chill the candor by which staff report facts or
··policy options to those regarded as superiors. see ouarles, 893
F.2dlat 393. Moreover, because the fact gathering and option ·
selection process is an integral part of the system that the
Pres~dent has chosen to assist him in exercising his
·
~ons~itutional powers, a claim of privilege has constitutional
dimertsions. G;lven Judge Lamberth's constitutional line between
fact \gathering and advice fonnulation, we hesitate to rely on
this latter point alone to support a claim of privilege, but the
constitutional arguments made in our appeal brief might help
shapd a framework for dealing with documents that may not have
been !specifically addressed in Judge Lamberth's opinion and
·
docu~ent,
order\. .· , . .
.
A. Speclf1c Response to Plaintiffs' FOIA Recyest
E.
I
•
•
We add, in conclus~on, our thoughts on an appropriate
I
'
response_to each of the six requests made by the AAPS, wh1ch are
broad~r and encompass the six requests made by the American
Councll for Health Care Reform.
l.
should
be
·The charter is, of course) a Task Force document and
provided to plaintiffs ..
I
b.
The second request, which parallels§ lO(b), has been
discussed above. We note, however, that plaintiffs ask for
documents that "will be 11 made available to the Task Force.·
Ordinarily, FOIA requests are not handled in a prospective
natur~; agencies have no continuing obligation to supply
docum~nts in response to a FOIA request after a reasonable search
is made.. However, the Task Force, under ~od Chemical News, has
- a continuing obligation to make its documer,ts publicly available.
We dolnQt believe-that the Task Force has an.obligation to inform·
the requestors each time a privileged document comes into its
I
•
.
.
P ossesslo.n.
I
- . .
Schedules and agendas of the Task Force would
ordin~rily be Task Force documents.
If, however, the Task Force
intend~ to ~onduct its meetings without a written ag~nda, i~ has
nti ob~igatibn to create one.
·
.
c.
d. . This request largely overlaps the second one to the
e~tent[ that working group or cluster group documents are made
available to the Task Force, and is discussed in detail above.
9
. CLINTON LIBRARY PHOTOCOPY
�'MA~-24-93
WED 11:48
'·
To t~e extent that the request seeks doc~1ents simply made
available to the working group or cluster groups or prepared by
them~ such documents need not be disclosed.
·
· I e. · . Assuming .schedules and agendas of working and cluster
. group meetings exist;, the Task Force has rto obligation to make
tliem!available to plaintiffs unless the schedules and agendas of
the working groups are made available to the Task Force.
·If. ·.
The · Task Force .h.as no . obligation to provide the .
requestors with the names and background histories of all
consUltants or advisors to· the Task Force unless such information
has been made available to the Task Force in a written form. The
Task Force need not create documents to comply with this request.
10
CLINTON LIBRARY PHOTOCOPY
�·MAR-24-93[WED 11:41
•
.
.ur
.us. Department or Jusdc:e
•
'
C:rttL !»%VISION
I'BDBUL 'DOGRAHS BRANCH
JIU ~BHiftlU. COVER SEE.ET
!)&TEl
FROK:
Fax No..
(202) 11ti•8202 (J.,OCAL) - - 3'1-82t2
tth FLOOR
.
DER!: ~A ~TAL O'Fjj__ PAGIES %NOLtTD%NG DIS COV!:.R
!'JU.NSMISISION.
.
(F:t'S)
·-.
/
PAQE %N ntiS
I
.. CLINTON LIBRARY PIIOTOCOPY
..
�
Dublin Core
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Title
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Previously Restricted Documents
Date
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1993-2001
Description
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<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
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William J. Clinton Presidential Library & Museum
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397 folders
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2006-0810-F - Office of the First Lady’s files on Health Care Task Force/Health Care Reform
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2006-0810-F
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Previously Restricted Document Release no. 7
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Adobe Acrobat Document
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Reproduction-Reference