The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Specifically, Hensarling claimed that any communications to the agency, and any “documents created or compiled” by Treasury “in connection with any responses” to Congress, could not qualify as “agency records,” regardless of whether they included a “legend” indicating how they could be used.  The chairman further claimed that all such records would be “subject to the absolute protections of the Speech or Debate Clause of the Constitution.”  Other sources indicate that Hensarling sent similar letters to other agencies, including the Consumer Financial Protection Bureau and the Federal Deposit Insurance Corporation.

{mosads}Hensarling’s attempt to redefine the scope of potential records subject to release under the FOIA is, in large part, without merit.  Congress frequently corresponds with Executive Branch agencies in connection with legislation or as a matter of oversight or investigation.

At times, such correspondence may be sensitive or confidential, and the FOIA provides a way to distinguish between “agency records” and “congressional records” in those circumstances.  That approach, however, disallows the sort of non-specific, generalized claims advanced in Hensarling’s letter.

Sadly, the House Financial Services Committee is not the first committee to try to frustrate the FOIA in this way.  CoA Institute is suing the IRS over guidance that its Office of Chief Counsel issued in December 2015.  The guidance claims that nearly all records relating to the Joint Committee on Taxation should be shielded from disclosure as “congressional records.”  We argue that this contradicts long-standing precedent and, more importantly, inhibits transparency and good government. 

The mere fact that a record controlled by an agency relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a congressional record.  Its nature as an “agency record,” and its availability under the FOIA, is dependent on whether Congress manifested clear intent to control the specific record in question.

Courts take the requirement that Congress manifest its intent over records seriously. Established case law mandates that Congress demonstrate the intent to retain control clearly and with specific language particular to the records at issue. Neither Congress nor an agency can rely on general, far-reaching, or pre-existing arrangements to treat all records as “congressional.” Post-hoc attempts to establish intent, say, after a FOIA request has been submitted, also are inadequate. Congress must instead establish its intent to maintain control over records either before they are created or contemporaneous with their transfer to or from an agency. And Congress cannot act subsequently to vitiate that original intent.

With this in mind, it should be clear that Hensarling’s letter is all bark and no bite. There are no specific records at issue, such as documents requested for a named hearing or open investigation.  And the chairman’s argument that the absence of a restrictive legend is “immaterial” is contradicted by the case law. His position is also terrible policy. The practical result of Hensarling’s approach would be to sweep a wide swath of records out of public reach, which would deprive journalists and everyday Americans of access to information about the interaction between Congress and the Executive Branch. That would severely undermine the fundamental purpose of the FOIA. Advocates for open government should remain vigilant against future efforts by other congressional committees to interfere with the FOIA in a similar manner.

Ryan Mulvey is counsel at Cause of Action Institute, a District of Columbia non-profit government oversight organization.

The views expressed by this author are their own and are not the views of The Hill.