information would be rendered meaningless, because each of the 535 Members of Congress would have unfettered access to agency documents.

Rep. Leach asserts that Defendants do not "reconcile" their alleged "willingness to provide documents to the Chairman, acting unilaterally without a Committee vote or a subpoena, with their unwillingness to provide requested documents to Plaintiff." Opposition at 20. However, the Committee Rules do not require a subpoena or a majority vote of the Committee Members to seek the production of documents. Rather, the Committee Rules authorize the Committee "to require, by subpoena or otherwise," the production of documents. See Committee Rule 2.2(c) (emphasis added). Moreover, contrary to Rep. Leach's assertion, Defendants have never expressed any "willingness" to provide documents to the Chairman of the Committee "acting unilaterally." Rather, Defendants' position is (as it has always been) that documents may be provided to the Chairman, acting on behalf of the Committee, in compliance with Committee Rules." If the Chairman requests documents, citing a connection to the Committee's business, Defendants presume, unless informed otherwise, that the Chairman is not acting in his capacity as an individual Member, but rather is acting on behalf of the Committee. Indeed, the same documents would be provided in response to a request by the Ranking Minority Member, if it were clear that the request was authorized by the Chairman or the full Committee.

13

Exactly the contrary is true in this case, however, where it is undisputed that Rep. Leach is not acting on behalf of the Committee. Rep. Leach concedes that "the House Banking Committee has not voted to authorize an investigation or hearings on Madison," nor has the Committee Chairman "made any request to Defendants for any information on Madison ...

13 Under the House Rules and Rules of the Banking Committee, the Chairman has the authority to schedule hearings, determine the scope of committee investigations and request documents on behalf of the committee. See House Rules X1.2(c)(1), X1.2(k)(1); XI.2(m)(2)(A); Rules of House Banking Committee 3.2; 4.6(a); 2.3(a).

Joint Statement of Facts at II.A.2 and II.A.4. Defendants have been expressly informed that the
Committee has not authorized Rep. Leach's request, and they cannot ignore that fact, just as this

Court should not ignore it.

Significantly, Defendants' interpretation of Section 552(d) -- that the provision does not
apply to Rep. Leach or any individual Member of Congress acting alone is exactly the
interpretation adopted by the Department of Justice, which it advises all federal agencies to
follow. See FOIA Update, Winter 1984, at 3-4 ("OIP Guidance: Congressional Access Under
FOIA") (attached as Ex. L). In this 1984 policy statement, which was published in response to
uncertainty regarding the meaning of Murphy, the Department of Justice stated "unequivocally,"
so as to remove "any doubt or hesitation among federal agencies" about the proper interpretation
of Section 552(d), that "the 'line' within subsection [(d)] should be drawn between requests made
by a House of Congress as a whole (including through its committee structure), on one hand,
and requests from individual Members of Congress on the other." FOLA Update at 3. The
Department of Justice emphasized that "even where a FOIA request is made by a Member
clearly acting in a completely official capacity," Section 552(d) does not apply to the request
"unless it is made by a committee or subcommittee chairman, or otherwise under the authority
of a committee or subcommittee. Insofar as the Murphy opinion indicates otherwise, it should
not be followed." Id. The Department of Justice agreed that "the FOIA's legislative history
makes it clear that precisely such a construction of subsection [(d)] was intended." Id. The
Department of Justice concluded that

when an agency receives a FOIA request from a Member of
Congress, it should first determine whether it is a duly authorized
request on behalf of Congress through a legislative committee or
subcommittee. . . . [T]f the request is not an official committee or
subcommittee request, then the agency should process it as a
request from "any person" under the FOIA, but with particular

regard for the considerations of congressional relations,
discretionary disclosure and waiver referred to above.

Id. at 4. This is exactly what Defendants have done in this case.

In his Opposition, Rep. Leach continues to ignore the legislative history of Section 552(d), the House Rules and Committee Rules, the specific application of those Rules in this case by the Committee Chairman and the express directions of H.R. Res. 394 and the Joint Statement in short, all of the Congressional direction that the Court should consider in this case, if it finds the plain language of the statute unclear. Instead, Rep. Leach relies exclusively on selective passages from Murphy, asserting that "by its holding, by its reasoning, and by subsequent judicial interpretation, Murphy controls this case." Opposition at 21. However, it is precisely because of the House and Committee Rules, the application of those Rules by the Committee Chairman, and the Congressional direction embodied in H.R. Res. 394 and the Joint Statement, that the language of Murphy does not control, or even apply, in this case.

Selectively editing Murphy, the Opposition asserts that judicial "efforts to decide whether 'only the Chairman' and not ‘the Ranking Minority Member' qualifies under Section 552(d) would entail 'an inappropriate intrusion into the legislative process [sic]. . .' Opposition at 19 (quoting Murphy, 613 F.2d at 1157). However, that paraphrase omits the critical language from the quoted sentence. What the D.C. Circuit really said was that "[i]t would be an inappropriate intrusion into the legislative sphere for the courts to decide without congressional direction that ... only the Chairman of a Committee shall be regarded as the official voice of the Congress for purposes of receiving such information. . . ." 613 F.2d at 1157. In Murphy, the court did not have before it, and therefore did not consider, any evidence of Congressional direction regarding the rights of the individual Member of Congress to obtain the information at issue in

that case." In contrast, in this case, there is overwhelming evidence of Congressional direction

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the House Rules and Committee Rules, H.R. Res. 394 and the Joint Statement, and the official statements of the Committee Chairman. Thus, with respect to the issue of Congressional direction, this case presents exactly the opposite of the fact situation in Murphy. In Murphy, the D.C. Circuit expressly preserved this Court's ability to reach a different result based on consideration of the Congressional direction found in this case.

generally

Rep. Leach argues that Defendants are attempting "to proscribe the rights of an individual Member," contrary to Murphy. Opposition at 19. However, Defendants have simply pointed out to the Court that Congress, itself, has proscribed the rights of its Members through the House Rules and the Committee Rules, and specifically through H.R. Res. 394, the Joint Statement, and the statements and decisions of the Committee Chairman. That kind of express direction from Congress was not before the D.C. Circuit in Murphy.

Subsequent to Murphy, in Southern Christian Leadership Conference, 747 F.2d at 781, the D.C. Circuit did address a situation analogous to this case. In Southern Christian Leadership Conference, like this case, there was Congressional direction regarding the individual Member's lack of authority to demand documents, and the D.C. Circuit rejected the request of an individual Senator to obtain the information contrary to that Congressional direction. 747 F.2d at 781. In the end, Rep. Leach's argument that Defendants seek to "entwine the Court in the legislative process" by pointing out the express Congressional direction that contradicts Rep. Leach's claims is exactly backwards it is Rep. Leach himself who would have this Court

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14 In Murphy, a FOIA requester claimed that the agency had waived any FOIA exemptions by previously releasing the same documents sought by the requester to a Member of Congress. There is no indication in the Murphy opinion that the Department of the Army provided the documents at issue to the individual Congressman in question because the agency deemed him to be "Congress" for purposes of Section 552(d) (then 552(c)). Instead, the Army could have released the records in question simply as an exercise of its discretion under FOLA.

"intrude into the legislative process," by compelling production of the documents he seeks, contrary to that Congressional direction. 15

The Opposition purports to find significance in the fact that Congress has amended other sections of FOIA twice since Murphy was decided, "[y]et neither time did Congress exercise its prerogative to overrule Murphy and Owens-Corning." Opposition at 21-22. However, the fact that Congress has amended other sections of FOLA, without addressing Section 552(d), says nothing about the correctness of the interpretation in Murphy. See Central Bank v. First Interstate Bank. N.A., U.S. 114 S. Ct. 1439, 1453 (1994) ("It is ‘impossible to assert with any degree of assurance that congressional failure to act represents[] affirmative congressional approval of the [courts'] statutory interpretation . . .'") (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989)) (second alteration in original).16

1

Finally, Rep. Leach devotes an entire section of his brief to arguing that the documents he seeks may not be withheld under the Privacy Act or Trade Secrets Act if he is found to be "Congress" for purposes of Section 552(d). Opposition at 22-24. However, Rep. Leach's argument misses the point. Defendants cited the Privacy Act and the Trade Secrets Act, which contain provisions analogous to Section 552(d), for the proposition that the courts have

15 Rep. Leach asserts that Murphy was subsequently applied in the same way in FTC v. Owens-Coming Fiberglas Corp., 626 F.2d 966, 974 n.16 (D.C. Cir. 1980). Opposition at 21. However, the majority's reference to Murphy in Owens-Corning was dicta, and it has no precedential value in this case. See, e.g., Gersman v. Group Health Ass'n, 975 F.2d 886, 897 (D.C. Cir. 1992) (dicta is not binding circuit law), cert. denied, U.S. 114 S. Ct. 1642 (1994). In addition, the Opposition fails to mention the strong dissent by Judge Wald in OwensCorning that expressly rejected the application of Murphy in that case. 626 F.2d at 978-79 (Wald, J., dissenting).

1

16 Moreover, if Congress is deemed to be aware of Murphy, then Congress also is deemed to be aware of the Department of Justice's longstanding view, expressed in the 1984 FOLA Update, that Murphy is wrong. See Lindahl v. OPM, 470 U.S. 768, 782 n.15 (1984) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation without change. . . .") (emphasis added) (citations omitted). -20

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