BNUMBER:  B-281390  
DATE:  November 24, 1998
TITLE: [Letter], B-281390, November 24, 1998
**********************************************************************

B-281390 

November 24, 1998

The Honorable F. James Sensenbrenner, Jr.
Chairman, Committee on Science
House of Representatives

Dear Mr. Chairman: 

This is in response to your letter dated April 10, 1998, written 
jointly with the Honorable George E. Brown, Jr., requesting our 
opinion on several questions pertaining to the National Academy of 
Sciences (Academy).  You asked (1) whether the Federal Advisory 
Committee Act Amendments of 1997 are applicable to the subgroups of 
the Academy (National Research Council, National Academy of 
Engineering, and Institute of Medicine), (2) whether the Freedom of 
Information Act is applicable to the Academy, its subgroups or their 
advisory panels, and (3) whether there are statutory or contractual 
barriers to the release of underlying data by the Academy and its 
subgroups to federal agencies, Congress, or the public.  Your letter 
also requested information on the committee processes at the Academy, 
which are addressed separately.[1]

For the reasons stated below, we find that (1) the 1997 amendments do 
apply to the subgroups of the Academy and thus federal agencies may 
not use the advice or recommendations of the Academy and its subgroups 
unless the requirements added by the 1997 amendments are met, (2) the 
Freedom of Information Act (FOIA) does not apply to the Academy, its 
subgroups or their advisory panels, and (3) other than criminal 
statutes that prohibit the disclosure of national security type 
information, federal laws generally do not directly bar private 
entities like the Academy from releasing data; however, contractual 
provisions with government agencies, private entities or individuals 
could preclude the Academy's release of the data, and section 15(b) 
added by the 1997 amendments could also limit the Academy's ability to 
release documents if their release would disclose matters exempt under 
FOIA.   

In preparing this opinion, we formally solicited the views of the 
Academy about these questions, and James R. Wright, General Counsel of 
the Academy, provided his legal opinion in a letter which is enclosed 
for your information.  The Academy generally agrees with our answers 
to these questions.

BACKGROUND

In 1972, Congress passed the Federal Advisory Committee Act (FACA), 
which set standards and procedures for the uniform operation and 
administration of advisory committees.  Each federal advisory 
committee is now required to file a charter with the General Services 
Administration which includes its objectives, scope of duties, 
estimated number of meetings and termination date.  In addition to 
having a federal employee attend all of their meetings, advisory 
committees must also keep detailed minutes of meetings, open their 
meetings to the public, and make records available to the public.

Crucial to whether an agency must comply with the requirements of FACA 
is the definition for "advisory committee" found in FACA.  An advisory 
committee is broadly defined in FACA as:

     [A]ny committee, board, commission, council, conference, panel, 
     task force, or other similar group, or any subcommittee or other 
     subgroup thereof, which is -
          
          (A) established by statute or reorganization plan, or
          (B) established or utilized by the President, or 
          (C) established or utilized by one or more agencies,

     in the interest of obtaining advice or recommendations for the 
     President or one or more agencies or officers of the Federal 
     Government . . . .

5 U.S.C.A. App. 2  sec.  3(2) (1996 & Supp. 1998). 

The Academy has never followed FACA.  An early court decision found 
that a committee of the Academy was not an advisory committee under 
FACA.[2]   But in 1997, the Court of Appeals for the District of 
Columbia Circuit held that an Academy committee doing work for the 
Department of Health and Human Services did come under the definition 
of advisory committee in FACA.  Animal Legal Defense Fund, Inc. v. 
Shalala, 104 F.3d 424 (D.C. Cir. 1997), cert. denied, ___ U.S. ___, 
118 S.Ct. 367 (1997).  

The Court of Appeals' holding in Animal Legal Defense Fund prompted 
the Academy to seek enactment of Pub. L. No. 105-153, 111 Stat. 2689 
(1997), the Federal Advisory Committee Act Amendments of 1997.  The 
amendments do two things.  First, the amendments change the definition 
of advisory committee for purposes of FACA by excluding committees 
created by the Academy from the definition.  The amended definition 
states,  ". . . such term [advisory committee] excludes . . . any 
committee that is created by the National Academy of Sciences . . . . 
"  5 U.S.C.A. App. 2  sec.  3(2)(1996 & Supp. 1998).  By excluding the 
Academy's committees from the definition of advisory committee, the 
amendments exempt the committees from compliance with the first 14 
sections of FACA.

Second, the amendments add a new section 15 to FACA that details 
special requirements relating to the committees of the Academy.  Most 
important, the amendments preclude an agency from using the Academy's 
advice or recommendations unless the section 15 conditions are met.[3]  
Under section 15, the Academy's committees must be independent from 
agency control.[4]  The Academy must also provide public notice of 
appointments to committees and of committee meetings.  Data gathering 
meetings must be open to the public, unless the Academy determines 
that doing so would disclose matters exempt under FOIA.[5]  If the 
meetings are closed, the Academy must provide summaries of the closed 
meetings.  Written materials and reports must also be available to the 
public, unless the Academy determines that doing so would disclose 
matters exempt under FOIA.
  
ISSUES

You have asked us to answer the following questions concerning the 
1997 amendments.

Question 1:  Do the  Federal Advisory Committee Act Amendments of 1997 
apply to the subgroups of the Academy:  National Research Council, 
National Academy of Engineering, and Institute of Medicine?

After examining the structure of the Academy, and the language and 
legislative history of the 1997 amendments, we find that the 1997 
amendments do apply to the subgroups of the Academy.  Thus federal 
agencies may not use the advice or recommendations of the Academy and 
its subgroups - the National Research Council (NRC), the National 
Academy of Engineering (NAE), and the Institute of Medicine (IOM) - 
unless the section 15 requirements added by the 1997 amendments are 
met.

The 1997 FACA amendments exclude any committee "created by the 
National Academy of Sciences . . ." from the definition of advisory 
committee under FACA.  
5 U.S.C.A. App. 2  sec.  3(2) (1996 & Supp. 1998).  Thus committees created 
by the Academy do not need to comply with sections 1 to 14 of FACA.[6]  
At issue here is whether committees created by the NRC, NAE, and IOM 
are also "created" by the Academy and therefore exempt from sections 1 
to 14 of FACA but must comply with section 15, which was added by the 
1997 amendments.  The 1997 amendments do not specifically mention the 
NRC, NAE, or IOM, all of which are connected to the Academy and use 
advisory committees in developing their reports or recommendations.  
In the next several paragraphs, we set out how each of the entities 
was formed and describe the relationship among the entities.  Then we 
discuss whether committees formed by these entities are "created" by 
the Academy for purposes of the FACA amendments.

        The Academy and Its Subgroups

The Academy is a private corporation established under federal law in 
1863 by a congressional charter approved by President Lincoln.  It is 
charged with reporting, when called upon by "any department of the 
Government," on any subject of science or art, but it can only charge 
the government for its expenses.  36 U.S.C.  sec.  253 (1994).  Among its 
powers under the charter is the power to "make its own organization 
including its constitution, by-laws, and rules and regulations . . . 
."  36 U.S.C.  sec.  252.  Under these powers, the Academy created the NRC, 
the NAE and the IOM.  The Academy, as the only legal entity, is the 
sole employer and is signatory to all contracts and grants, regardless 
of whether the work is performed by the NRC, NAE or IOM.

The National Research Council (NRC) was the first of the entities in 
question to be established by the Academy and was organized by the 
Academy in 1916 at the request of President Wilson.  It is not 
separately incorporated.  One of the purposes of the NRC is to 
"stimulate research in the mathematical, physical, and biological 
sciences . . . with the object of increasing knowledge, of 
strengthening the national defense, and of contributing in other ways 
to the public welfare."  Exec. Order No. 2859, reprinted as amended in 
36 U.S.C.  sec.  253.  The NRC is the "operating arm" of the Academy.  Its 
staff monitors advisory committees, provides editorial or support 
services to committees, the Academy and its constituent entities, and 
publishes reports.  

The National Academy of Engineering (NAE) was established by the 
Academy through articles of organization in 1964 as a separate 
membership organization of the Academy.  It is not incorporated.[7]  
The NAE sponsors engineering studies, encourages engineering education 
and research, and explores means for promoting cooperation in 
engineering in the United States and abroad.  It is described in the 
Academy's annual report to Congress as "autonomous in its 
administration and selection of its members."  Although the NAE 
executive committee selects its own office members and councils, it is 
constrained by its Articles of Organization such that it is not 
authorized to perform any activities that are not consistent with the 
Academy's charter.  It must also work jointly with the Academy in 
matters dealing with Congress and other countries.  Under its Articles 
of Organization the NAE does not have the authority to amend its 
Articles of Organization without the approval of the Academy.  Most of 
NAE's studies are conducted by the NRC.  

The Institute of Medicine (IOM) was created by the Academy by charter 
in 1970 to identify concerns in medical care, research and education 
and to secure the services of members of appropriate medical 
professions to examine policy matters relating to public health.  It 
is a membership society, but unlike the NAE and Academy, members are 
not elected for life.  The IOM is not incorporated.  The IOM's 
projects are subject to the approval and review procedures of the NRC 
and its operations are subject to the general operating procedures of 
the NRC.  The members of committees conducting studies and preparing 
reports for dissemination outside the IOM are appointed by the 
President of the IOM, subject to the approval of the NRC chairman. 

The interrelationships among the Academy, NRC, NAE and IOM are complex 
and numerous.  The president of the Academy is the chair of the NRC 
and on the executive committees of the NAE and IOM.  The NAE performs 
most of its work through NRC committees, and the IOM follows the 
general operating procedures of the NRC.  The president of the IOM is 
nominated by the IOM Council but appointed by the president of the 
Academy.  Both the president of the IOM and NAE are members of the NRC 
executive committee.  The NRC staff support the work of the Academy 
and NAE.  

According to a recent list of committees of the Academy, NRC, NAE, and 
IOM, the NRC has by far the largest number of active committees, over 
500, while the Academy itself has the fewest - only six active 
committees.  The NAE has eight active committees, and the IOM has over 
90 active committees.[8]  

        Discussion

In analyzing whether a committee created by the subgroups of the 
Academy is created by the Academy and thus subject to the section 15 
requirements added by the 1997 amendments, we look first to the 
statute.  

In the 1997 amendments, the definition of what constitutes a FACA 
advisory committee was amended to exclude, inter alia, committees 
created by the Academy.  The 1997 amendments revised the exclusions to 
read as follows:

     . . . such term [advisory committee] excludes (i) any committee 
     that is composed wholly of full-time, or permanent part-time, 
     officers or employees of the Federal Government, and (ii) any 
     committee that is created by the National Academy of Sciences or 
     the National Academy of Public Administration.[9]

5 U.S.C.A. App. 2  sec.  3(2)(1996 & Supp. 1998) (emphasis added).   In 
straightforward language, the amendments exclude all committees 
created by the Academy from the definition.  By logical extension, 
this exclusion also applies to all of the subgroups of the Academy.  

As can be seen from the facts presented above about the organization 
of the Academy and its subgroups, it is clear that the Academy is the 
creator of each group and is the only incorporated organization.  The 
interrelationships among the Academy entities are complex and 
numerous, including interlocking executive committees and shared 
policies and procedures, and the NAE, NRC, and IOM are all part of the 
corporate entity of the Academy.  All their grant documents and 
contracts are signed by the Academy and all employees, regardless of 
whether their work is for the IOM or the NRC, are paid by the Academy.  
As subgroups of the Academy, the NRC, NAE, and IOM are bound by the 
same laws that bind the Academy.  It is logical that committees 
created by internal, unincorporated subgroups of the Academy would 
also be committees created by the Academy and therefore excluded from 
the definition of advisory committee.[10]

In addition, the posture in which the amendments were enacted lends 
support to the position that Congress intended the exclusion to apply 
to the committees formed by the Academy's subgroups.  The amendments 
were proposed in response to Animal Legal Defense Fund, the court 
decision that made FACA applicable to an NRC committee.  Although the 
litigation involved an NRC committee, the court's decision focused on 
the Academy, not on the NRC.  It is reasonable to assume that since 
the amendments were intended to overrule the court decision, the 
amendments would apply to the NRC.  
  
The legislative history, though sparse, supports this statutory 
interpretation.[11]  In a hearing on FACA and proposed amendments to 
FACA on November 5, 1997,[12] it is apparent from the hearing 
transcript that the chair of the committee presumed that NRC 
committees are Academy committees since all the discussion at the 
hearing was addressed to the Academy and the amendments were being 
considered to overrule the court decision noted above.  

On November 9, the day the House passed the bill, the floor manager 
and sponsor of the bill, Steven Horn, noted that the Academy 
frequently sets up committees that provide independent advice to the 
Government:  "90 per cent of these reports are requested by government 
agencies and/or legislative committees of Congress."[13]  When he 
refers to "90 per cent" of the reports from the advisory committees, 
he cannot be referring solely to the Academy, because it has only six 
committees and they do not produce "90 per cent" of the reports.  His 
statistics must include the NRC and IOM because together they produce 
more than 90 per cent of the reports from the committees.  As noted 
above, the NRC has the most committees of the entities within the 
Academy and it is not likely that Congress passed the 1997 amendments 
for the Academy's six committees and ignored the over 500 committees 
of the NRC, where the bulk of the Academy's work is carried out.  

Congress is also aware that the Academy works through its subgroups 
for most of its work.  On occasion, public laws even specify which 
committee of the Academy should be approached to do a study.  For 
example, one statute states, "The Secretary shall commission the 
National Academy of Sciences, working through the Board on Agriculture 
of the National Research Council, to conduct a study" of the delivery 
systems used to provide farmers with veterinary services.  
7 U.S.C.  sec.  3193 (1994). 

          Conclusion

The interrelationship of the Academy and its subgroups and the 
legislative history of the 1997 amendments support our view that the 
1997 amendments do apply to the subgroups of the Academy.  Thus, 
committees formed by the NRC, NAE and IOM are "created" by the 
Academy, and they must comply with section 15 requirements added by 
the 1997 amendments.  Federal agencies may not use the advice or 
recommendations of the Academy and its constituent entities unless the 
requirements of section 15 are met.

Question 2:  Does the Freedom of Information Act apply to the National 
Academy of Sciences, the National Research Council, the National 
Academy of Engineering, the Institute of Medicine, or the Academy 
advisory panels that conduct federally funded studies?

No, the Academy, NRC, NAE, IOM and their advisory panels are not 
subject to the Freedom of Information Act (FOIA).  5 U.S.C.  sec.  552 
(1994). 

FOIA applies only to entities that meet the definition of "agency" 
under FOIA:  

        For purposes of this section [section 552], the term 'agency' 
        as defined in section 551(l) of this title includes any 
        executive department, military department, Government 
        corporation, Government controlled corporation, or other 
        establishment in the executive branch of the Government 
        (including the Executive Office of the President), or any 
        independent regulatory agency.

5 U.S.C.  sec.  552(f)(1)(Supp. II 1996).  One court has already addressed 
the question of whether FOIA is applicable to the Academy.  In 
Lombardo v. Handler,  397 F. Supp. 792, 801 (D.D.C. 1975), aff'd 
without opinion, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 
U.S. 932 (1977), the U.S. District Court for the District of Columbia 
held that the Academy is not an agency under FOIA.  The court found 
that the Academy is clearly not an establishment in the executive 
branch of the government; it neither functions under the President nor 
was it created by the President.  Lombardo, 397 F. Supp. at 802.  
Although the Academy was chartered by the Congress, it is not a 
government corporation because it is not a "wholly government-owned 
enterprise."  The court also stated that the Academy is not a 
government-controlled corporation because no significant control by 
government has been shown.  Finally, the court pointed out that the 
Academy is not an authority of the government and does not perform 
governmental functions like an administrative agency.  Lombardo, 397 
F. Supp. at 802.

Although the Academy was established by Acts of Congress, 36 U.S.C.  sec.  
251-254 (1994), the Academy does not possess characteristics typical 
of an agency under FOIA.  It has no authority for rule making, 
adjudication, or licensing.  It has no power to implement its own 
advice or impose sanctions.  For these reasons, the Academy is not a 
"center of gravity in the exercise of administrative power," Lombardo, 
397 F. Supp. at 795, and cannot be an agency.

As the Academy points out in its legal opinion, additional support 
that FOIA is inapplicable to the Academy can be found by the presence 
of section 15(b)(3) - (5) added by the 1997 amendments which requires 
the Academy and its advisory committees to make their data gathering 
meetings public, disclose written materials submitted to the 
committees and make brief summaries of meetings and Academy reports 
available.  5 U.S.C.A. App. 2  sec.  15 (1996 & Supp. 1998).  These 
provisions would be unnecessary if the Academy were an "agency" 
subject to the requirements of FOIA.  In other words, these written 
materials, brief summaries and Academy reports would already be 
"agency records" subject to FOIA and have to be disclosed as materials 
under the control of the Academy that had been created or obtained by 
the Academy.

The holding of Lombardo with regard to the Academy and FOIA has not 
been overturned or revisited.[14]  Thus, the Academy is not subject to 
FOIA.  Although Lombardo did not directly address the status of the 
NAE, NRC and IOM, or their advisory panels conducting federally funded 
studies, the court's rationale is equally applicable.  None of these 
entities is an executive department, a military department, a 
government corporation, a government-controlled corporation, or other 
establishment in the executive branch of the government.  None are 
incorporated.  None are independent regulatory agencies.  None of the 
advisory panels possess the ability to act independently.  None of 
these entities can be considered an agency for the purposes of FOIA. 

Question 3:  Are there statutory or contractual barriers to the 
release of underlying data by the Academy and its subgroups to the 
public, Congress, or federal agencies?

Other than criminal statutes which prohibit the disclosure of 
classified information or information related to national defense, 
federal laws generally do not directly bar private entities like the 
Academy and its subgroups from releasing underlying data to the 
public, Congress or federal agencies.  However, contractual provisions 
with government agencies, private entities or individuals could 
preclude the Academy's release of underlying data, and section 15(b) 
added by the 1997 amendments could also limit the Academy's ability to 
release documents if their release would disclose matters exempt under 
FOIA.  

With the exception of criminal statutes related to national security, 
federal non-disclosure laws generally do not directly bar private 
entities like the Academy from releasing information because they 
generally apply only to federal agencies and/or federal employees.[15]  
Federal employees, for example, are prohibited by statute from 
disclosing any information coming to them in the course of their 
employment relating to such things as trade secrets, confidential 
statistical data, or income returns to anyone not authorized by law.  
The penalty for disclosure could be a fine, prison and/or dismissal 
from employment.  18 U.S.C.  sec.  1905 (Supp. II 1996).  This law does not 
apply to private individuals or entities.  However, many criminal 
statutes relating to national security type matters apply to 
individuals, whether they are employed by the government or not.  Thus 
Academy employees or members of Academy committees may be subject to 
criminal statutes if they disclose national security information to 
unauthorized persons.  18 U.S.C.  sec.  798 (1994 & Supp. II 1996).  

Contracts with federal agencies frequently include provisions in which 
the Academy agrees not to disclose information covered by federal 
non-disclosure laws such as trade secrets, personally identifiable 
records, or national security information.  When the Academy is 
entering into a contract with an agency that may result in the release 
of classified information to Academy employees, the contract will have 
a provision whereby the Academy agrees to comply with special 
procedures to protect classified information from disclosure and to 
adhere to the classification determination made by the agency with 
regard to national security information.[16]   
Contract provisions with private entities may also bar the Academy 
from disclosing certain types of information.  This could include 
personal information like that found in medical records or proprietary 
commercial information received directly from industry, such as 
commercial or financial information provided by a commercial test 
publisher.     

Another source of possible restrictions to the Academy's releasing 
information is found in section 15 added by the 1997 amendments.  It 
requires that data gathering meetings be open unless open meetings 
"would disclose matters described" in the exemptions to FOIA.[17]  
Similarly, written materials presented to the Academy committee, 
summaries of closed meetings, and final reports must also be made 
available to the public unless the Academy determines that releasing 
the information "would disclose matters described" in the exemptions 
to FOIA.  Thus,  if release of documents would disclose matters 
described in the exemptions, the Academy must keep them confidential 
to comply with section 15. 

According to the Academy, the FOIA exemptions that would most 
frequently be invoked would be exemption (b)(1) relating to national 
security information, (b)(3) relating to information exempted by 
another statute, and (b)(4) relating to trade secrets or confidential 
commercial or financial information.  The Academy has indicated that 
it anticipates that trade secrets and commercial or financial 
information will be the most commonly invoked rationale for 
withholding information presented to Academy committees from the 
public. 

Under Academy policy and NRC guidelines, classified information, trade 
secrets, and information of a personal nature are to be kept 
privileged.  Additional classes of information under the Academy's 
policy that may be deemed privileged include  information subject to 
statutory restriction on access and disclosure, draft manuscripts, 
original data or other information for which the institution 
recognized a right of first publication by the author, and information 
that by contractual stipulation or prior agreement is received on a 
privileged basis.  As a private entity, the Academy may make its own 
disclosure policies.  However, the Academy has stated that to the 
extent that an activity is subject to the new section 15 added by the 
1997 amendments, the policy and guidelines are superseded and 
underlying data will be made available in accordance with section 15.

We hope you find the analysis of these issues useful.  If we can be of 
further assistance, let us know.

Sincerely,

Robert P. Murphy
General Counsel

Enclosures

1. See Federal Research:  The National Academy of Sciences and the 
Federal Advisory Committee Act (GAO/RCED-99-17, Nov. 13, 1998).

2. Lombardo v. Handler, 397 F. Supp. 792 (D.C.C. 1975), aff'd without 
opinion, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932 
(1977).  In this same case, the court also held that the Freedom of 
Information Act (FOIA) definition of "agency" does not include the 
Academy, and therefore the Academy is not subject to FOIA.  This 
holding, which has not been overturned, will be discussed further 
under question 2 below.

3. The full text of section 15 is set out in the enclosure.

4. The section 15 requirements for Academy committees are narrower 
than the rules FACA committees must follow.  FACA committees are not 
independent from agency control and must inter alia file charters, 
have a federal employee attend all meetings, keep detailed minutes of 
meetings, and open deliberative meetings to the public.  

5. Exemptions to FOIA are found at 5 U.S.C.  sec.  552(b)(1994 & Supp. II 
1996).

6. As was stated above, Federal agencies are precluded from using 
advice or recommendations of the Academy and its committees unless 
they comply with section 15 of FACA; such compliance, however, does 
not make them FACA advisory committees.

7. The National Academy of Engineering Fund (NAEF), which holds assets 
for the benefit of the NAE, is incorporated as a separate nonprofit 
corporation.  The NAE council is responsible for control of all funds 
administered by the NAEF.  The NAEF issues its own financial report.  
Expenses of NAE incurred by the NRC and Academy are reimbursed by the 
NAEF.

8. The Academy's six committees and NAE's eight committees are not 
subject to the governing board and their work tends to be different in 
nature from the work performed by the NRC committees.  For example, 
one joint committee (Academy, NAE, and IOM) meets with scientific 
leaders in other countries to promote human rights; another works on 
developing a series on science that could run as public service 
announcements; a third develops conferences and programs.

9. Committees created by the National Academy of Public Administration 
must follow some, but not all, of the section 15 requirements.

10. By way of analogy, the interconnectedness of the Academy and its 
subgroups include many of the factors (common directors, common 
employees, unified administrative control, common offices, etc.) used 
to analyze whether a group of corporations constitutes a "single 
business enterprise" such that a court might extend liability to all 
of the affiliated organizations.  See 1 William Meade Fletcher et al., 
Fletcher Cyclopedia of the Law of Private Corporations  sec.  43 (perm. ed. 
rev. vol. 1990 & Supp. 1998).

11. The bill, H.R. 2977, was introduced and passed the House of 
Representatives the same day, November 9, 1997.  Four days later the 
House-passed bill was introduced and passed by the Senate.  No 
committee reports accompanied the legislation.  

12. Although the hearing preceded the date that H.R. 2977 (the bill 
that became law) was introduced, the remarks of Chairman Steven Horn 
and other witnesses indicate that some of the provisions found in H.R. 
2977 were under discussion, especially "openness" changes in the way 
the Academy conducts its studies.  See, e.g., Federal Advisory 
Committee Act:  Hearing Before the Subcomm. on Government, Management, 
Information, and Technology of the House Comm. on Government Reform 
and Oversight, 105th Cong. 6, 8-9, 58-59, 66-67, 72 (1997). 

13. 143 Cong. Rec. H10578, 10580 (daily ed. Nov. 9, 1997) (statement 
of Rep. Horn).

14. Recent cases have followed the rationale in Lombardo.  For 
example, in Dong v. Smithsonian Institution, 125 F.3d 877, 882 (D.C. 
Cir. 1997), cert. denied, ___U.S. ___, 118 S. Ct. 2311 (1998), the 
court held that the Smithsonian is not an agency subject to the 
Privacy Act (which uses the same definition of "agency" as FOIA).  The 
court found that the Smithsonian does not have the amount of 
"substantial independent authority" needed to be considered an agency.  
The American National Red Cross is also not an "agency" for purposes 
of FOIA.  Irwin Memorial Blood Bank of San Francisco Medical Soc. v. 
American National Red Cross, 640 F.2d 1051 (9th Cir. 1981).  

15. It should be noted that the Academy and its constituent entities 
are private and thus not required to release data to the public, the 
Congress or to federal agencies.  However, as noted above, federal 
agencies may not use the advice or a recommendation provided by the 
Academy that was developed by the use of a committee unless the 
requirements of section 15 are met.  5 U.S.C.A. App. 2  sec.  15. 

16. For example, a contract between the Academy and the Department of 
Defense that may result in the release of classified information to 
Academy employees will contain a special agreement that the contractor 
(the Academy) will comply with DOD 5220.22-M, National Industrial 
Security Program Operating Manual, 
January 1995 (NISPOM) under which the Academy agrees to protect 
classified information provided by the U.S. Government from 
disclosure.     

17. Exemptions to FOIA are found at 5 U.S.C. 552(b)(1994 & Supp. II 
1996).