Why FOIA Obligations Don't Apply to Congress
Bar Association attorney says it's not because lawmakers are protecting themselves.
Agencies employees frustrated by oversight demands of lawmakers have often wondered why the public disclosure obligations under the 50-year-old Freedom of Information Act do not apply to Congress itself.
Sen. Patrick Leahy, D-Vt., and some in the transparency advocacy community have in the past pressed for more disclosure requirements for lawmakers, as has the Obama administration (though it removed its own Office of Administration from FOIA coverage a year ago).
In a press briefing last June, White House spokesman Josh Earnest jabbed Congress after an oversight hearing criticized the administration for having processed only 647,000 FOIA requests the previous fiscal year.
"I would note that that is 647,000 more FOIA requests than were processed by the United States Congress," he told reporters. "And those who are interested in advocating for genuine transparency and government should advocate for Congress being subject to those kinds of transparency measures."
To no one’s surprise, the FOIA reform bills that have cleared Congress in the past year do not contain any language broadening the disclosure demands on lawmakers themselves.
Enacted in 1966, FOIA “applies to records either created or obtained by an agency and under agency control at the time of the FOIA request,” noted a summary by the Internal Revenue Service. “Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies, are subject to the FOIA. State governments, municipal corporations, the courts, Congress and private citizens are not subject to the FOIA.”
Transparency groups recognize the difficulty of placing disclosure demands on Congress on grounds that lawmakers enjoy the same privacy rights as agency managers and private individuals for whom FOIA allows exceptions.
“As an organization, we promote transparency but not blind transparency, and we are aware that genuine restrictions might be appropriate,” Liz Hempwicz, a public policy associate at the nonprofit Project on Government Oversight, told Government Executive. “However, we have fought to have access to many congressional records, including Congressional Research Service reports, and an open legislative process. POGO supports Congress being subject to FOIA so far as it would increase the public interest as well as congressional functionality, and hopefully the public would have some say in helping Congress set those standards.”
But Thomas Susman, an attorney and director of the Governmental Affairs Office at the American Bar Association, said he sees little point in such an expansion of FOIA. He cited three reasons—none of which involve Congress’ desire for self-protection.
Historically, during the 1960s onward, Congress never applied legislation to itself, he said: not when it created the Occupational Safety and Health Administration, environmental laws or equal employment laws. Such congressional accountability “is only a recent phenomenon,” he said.
The second reason has to do with FOIA’s “format.” It was enacted as an amendment to the 1946 Administrative Procedure Act so that it would go before the right congressional committees, and that law has always applied only to agencies, Susman said.
Finally, “for a long period Congress has been pretty open, with committee hearings and debate,” he said. Even without a Sunshine Act, “information has been pretty freely available online.” The only exception that has prompted transparency groups’ activism is the proprietary CRS reports, and even those get released by outside groups, he added.
Correspondence between members of Congress and individuals and even draft bills (many of which are voluntarily released) are protected “as private, as pre-decisional parts of the deliberative process,” Susman said. “What would you get if you applied FOIA to Congress? The answer, I think, is nothing.”