U.S. Department of Justice Office of Information and Privacy FOIA UPDATE OIP Guidance Congressional Access Under FOIA A particularly delicate issue arising under the Freedom of Information Act is the proper treatment of FOIA requests received from Members of Congress Such requests may be made for a variety of different purposes--such as in aid of a specific or general legislative function, on behalf of a constituent, or even as a matter of a Member's primarily personal interest. În responding to such requests, with their inherent implications for Executive/Legislative Branch relations, federal agencies can face troubling disclosure decisions and are often uncertain as to where they should, or must, "draw the line Fortunately, the FOIA contains language within its subsection (c) specifically addressing the subject of congressional access. The exact meaning of this language, though, is less than crystal clear, as it succinctly states only that "[the FOIA) is not authority to withhold information from Congress. 5 U.S.C. §552(c). Such phrasing leaves somewhat unclear exactly which requests should be treated as special ones from Congress. Unfortunately, this has been clouded even further by the D.C. Circuit's highly questionable opinion in Murphy v. Department of the Army, 613 F.2d 1151 (D.C. Cir. 1979). THE MURPHY DECISION In Murphy, a FOIA requester argued that the Army had "waived" its right to protect requested records under Exemption 5 because it had provided the records to a Member of Congress. See 613 F.2d at 1155. While the congressman involved had an undeniable official interest in the records subject matter (a proposed public works project within his district), it was undisputed that he had obtained them in his capacity as an individual Member, not through a formal committee or subcommittee request. See id. at 1153 & n.2 In an opinion written by District Court Judge Harold H. Greene (sitting by special designation), the D.C. Circuit refused to find "waiver" under such circumstances, but it did so by relying exclusively on the operation of FOIA subsection (c). See id. at 1155-56. In so doing, Judge Greene's opinion interpreted subsection (c) expansively, suggesting that it requires unexempted FOIA access for any request made by a Member of Congress in his or her official capacity. See id. at 1156–58. To be sure, the "non-waiver'' outcome reached in Murphy seems entirely correct, particularly according to the law of waiver as it has developed under the FOIA. See Winter 1984 FOIA Update. Spring 1983, at 6 But the Murphy opinion's analysis and application of subsection (c) are quite troubling in the past, the Department of Justice has not fully confronted Murphy, but instead strained to minimize its significance to subsection (c) determinations by rationalizing that subsection (c) was not indispensable to Murphy's outcome. FOIA Update. Summer 1980, at 4. However, there is just no getting around the fact that the Murphy opinion, on its face, is based entirely upon its aberrational reading of subsection (c), and this has given pause to many agency officials considering access requests from individual Members of Congress. THE PROPER SUBSECTION (C) “LINE”* Therefore, so that there should no longer be any doubt or hesitation among federal agencies on this point, it is now stated unequivocally, as a matter of Department of Justice FOIA policy, that the "line" within subsection (c) 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. Even where a FOIA request is made by a Member clearly acting in a completely official capacity, such a request does not properly ingger the special access rule of subsection (c) 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. This approach to the issue. Murphy notwithstanding, is strongly compelled by several considerations. First and foremost, the FOIA's legislative history makes it clear that precisely such a construction of subsection (c) was intended. See H.R. Rep. No. 1497, 89th Cong. 2d Sess. 11-12 (1966) (**Members of Congress have all of the rights of access guaranteed to any person' [under the FOIA), and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions.); S. Rep. No. 813, 89th Cong., 1st Sess. 10 (1965); Federal Public Records Law: Hearings on H.R. 5012, et. al. Before Subcomm. of the Government Operations Comm., 89th Cong., 1st Sess. 23 (1965) (Statement of Rep. Moss). See also 5 U.S.C. §552a(b)(9) (identical **line drawn under the Privacy Act of 1974). Such a construction also fully comports with the access rules traditionally applied in non-FOIA contexts, which Congressional FOIA Access ongressional access along exactly the same lines. 8.. Exxon Corp. v. FTC. 589 F.2d 582, 592-94 (D.C. Cir. 1978) ("The principle is important that disclosure of information can only be compelled by authority of Congress, its committees and subcommittees, not solely by individual members. ''), cert. denied, 441 U.S. 943 (1979); see also Liveright v. United States, 347 F.2d 473. 474-75 (D.C. Cir. 1965) (congressional subpoena not valid unless issued by subcommittee chairman with full, express authority of subcommittee). Indeed, this rule was expressly applied in a recent decision denying Senator Jesse Helms non-FOIA bid for special access to FBI records on Martin Luther King, Jr. See Lee v. Kelley, 99 F.R.D. 340, 342-43 & n.2 (D.D.C. 1983), petition for mandamus denied, No. 83-2090 (D.C. Cir. Oct. 19, 1983) (appeal docketed, Nos. 83-2141, 83-2142 (D.C. Cir. Oct. 28. 1983)). FOIA PRACTICE It is also significant that several FOIA requests from individual Members of Congress have been litigated through the years, including requests unquestionably made in a Member's official capacity. without it ever having been held that such requests qualify for special access under subsection (c). See. e.g.. Aspin v. Department of Defense. 'F.2d 24, 26 (D.C. Cir. 1973); Mink v. EPA. Civil 1-1614, slip op. at 1 (D.D.C. Aug. 27, 1971) (reg such a special access argument), rev'd on other grounds, 464 F.2d 742, 744 (D.C. Cir. 1972), rev'd on other grounds, 410 U.S. 73 (1973). Cf. Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 300 (D.D.C.), aff'd, 548 F.2d 977 (D.C. Cir. 1976). It is therefore not at all surprising that the contrary interpretation of subsection (c) employed in Murphy was pointedly and persuasively criticized in a subsequent D.C. Circuit case. See FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 978-79 (D.C. Cir. 1980) (Wald, J., concurring in part, dissenting in part). Moreover, such a demarcation within subsection (c) is most sensible from a practical standpoint as well. Were the "line" to be drawn otherwise, then any individual Member of Congress, acting out of some official interest in the subject matter of an agency record, could personally compel its disclosure without regard for its exempt status under the FOIA. Such a practice would not only pose a myriad of difficulties for federal agencies, it would be directly contrary to the traditional manner in which the Executive and Legislative Branches interact. See. e.g.. Exxon Corp. v. FTC. supra, 589 F.2d at 592-94; see also FTC v. OwensCorning Fiberglas Corp., supra, 626 F.2d at 978-79 (Wald, J.). DISCRETIONARY DISCLOSURE is is not to say, however, that agencies are without retion to make broad FOIA disclosures to individual Members of Congress under appropriate circumstances. Accord Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979) (FOIA exemptions are discretionary, not mandatory). Recognizing the importance of federal information flow to effective congressional relations. Executive Branch agencies should of course give very careful consideration to any access request received from a Member of Congress, with discretionary disclosure often a possibility. And where an agency makes such a discretionary disclosure in furtherance of a legitimate governmental interest, together with careful restrictions on further dissemination, it should be able to resist an argument that such action constitutes a "waiver" of FOIA exemptions. See FOIA Update. Spring 1983, at 6. On the other hand, however, agencies must remember that certain types of information exempted under the FOIA are prohibited from disclosure by other rules or statutes. see. e.g.. Rule 6(e) of the Federal Rules of Criminal Procedure (grand jury information), and that agency discretion to disclose such information is necessarily circumscribed. see, e.g.. United States v. Sells Engineering, Inc., 103 S.Ct. 3133, 3140-49 (1983) (strict limitations placed on disclosure of grand jury information). Moreover, even where the special congressional access rule of subsection (c) is clearly applicable, an agency could still refuse to disclose requested information based upon an authorized assertion of executive privilege by the head of the agency. See President's Memorandum for the Heads of Executive Departments and Agencies Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982) (requiring specific Presidential authorization for any invocation of executive privilege in response to a congressional access request). CONCLUSION In sum, 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. If so, then the request falls within subsection (c) of the FOIA and only a specially authorized claim of executive privilege could be interposed to justify nondisclosure. Any FOIA request submitted by the chairman of a committee or subcommittee on a subject within its jurisdiction should routinely fall into this category. On the other hand, if 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. This guidance clarifies and updates the Department's 1980 policy statement on this subject, in which the same stalutory interpretation was suggested. On June 28, 1994, this Court issued an Order directing counsel, inter alia, to "advise the Court of any further developments as may be relevant to the status of this case." Order at 2. Defendants Office of Thrift Supervision ("OTS") and Resolution Trust Corporation ("RTC") submit this Supplemental Brief to advise the Court of factual developments affecting this case that have occurred since June 27, 1994, the date on which Defendants filed their Reply brief. On the same day that Defendants filed their Reply, the Committee on Banking, Finance and Urban Affairs of the U.S. House of Representatives ("House Banking Committee") announced that it had scheduled the first round of hearings on Madison Guaranty Savings & Loan ("Madison") and related matters. The initial hearings, which are scheduled to begin on July 26, 1994, are to cover those areas in which the Independent Counsel, Robert B. Fiske, Jr. has completed his investigation.' On behalf of the Committee, Chairman Henry B. Gonzalez, has requested that the RTC and OTS provide documents relating to the topics to be covered during the hearings.? As contemplated in the bipartisan agreement announced by the House Leadership on June 15, 1994, the initial phase of hearings and the document requests by the Committee have been limited to the first, or so-called "Washington," phase of the ongoing investigation by the Independent Counsel.' Accordingly, on behalf of the Committee, Chairman Gonzalez has requested the RTC and OTS to provide all - 1 See Jerry Seper, Whitewater Probe By Hill Bank Panel To Call Top Officials. Washington (D.C.) Times, July 6, 1994 ("Rep. Henry B. Gonzalez plans to call as many as 45 witnesses including 15 White House officials -- for Whitewater-Madison hearings, scheduled to begin July 26 before the House Banking Committee."); Jerry Seper, Leach Criticizes Narrowed Hearings, Washington (D.C.) Times, June 30, 1994 (Gonzalez "said Whitewater-Madison hearings will begin July 26" and that the "hearings have been structured to 'respect the limitations' agreed to by the House leadership."); Susan Schmidt, House Banking Panel Sets Whitewater Hearing Date, Washington (D.C.) Post, June 28, 1994 ("House Banking Committee Chairman Henry B. Gonzalez (D-Tex.) announced yesterday he will begin Whitewater hearings July 26 . . . ."); Jerry Seper, House Panel Invites Fiske To Testify, Washington (D.C.) Times, June 28, 1994 ("Whitewater-Madison Special Counsel Robert B. Fiske Jr. has been asked to testify before the House Banking Committee when it begins hearings on the affair July 26.") (collectively attached as Ex. A). 2 See Letter from Hon. H. Gonzalez to J. Ryan, dated July 7, 1994 (attached as Ex. B); letter from Hon. H. Gonzalez to J. Fiechter, dated July 7, 1994 (attached as Ex. C). A similar request was sent to the RTC by the Senate Committee on Banking, Housing and Urban Affairs on June 22, 1994. See Letter from Hon. D. Riegle and Hon. A. D'Amato to J. Ryan, dated June 22, 1994 (attached as Ex. D). 3 See Joint Statement on "House Hearings on Whitewater," dated June 15, 1994 ("Joint Statement") (attached as Ex. E). See also Jerry Seper, Whitewater Probe By Hill Bank Panel To Call Top Officials, Washington (D.C.) Times, July 6, 1994 ("The House Leadership, with bipartisan support, agreed June 15 to hold Whitewater-Madison hearings but to limit them initially to the 'Washington phase' of the Fiske investigation.") (Ex. A); id. (Chairman Gonzalez stated that "[t]he Banking Committee is committed to holding hearings based on the bipartisan House leadership agreement."). documents that pertain to "contacts between White House officials and officials of the Treasury and the [RTC or OTS] related to Madison Guaranty Savings and Loan and Whitewater Development Corporation." Letters from Hon. H. Gonzalez, dated July 7, 1994. Further hearings on other issues relating to Madison are to be sequenced to occur after the Independent Counsel's completion of the subsequent phases of his investigation. See Joint Statement (Ex. E). Presumably, the Committee will request documents relevant to the topics to be covered in subsequent hearings as those hearings are scheduled. The purpose of scheduling the hearings and requests for documents in phases, tied to the completion of the separate phases of Independent Counsel Fiske's investigation, is to ensure that Congressional inquiry into the matter does not interfere with the Independent Counsel's investigation. See H.R. Res. 394, reprinted in 1940 Cong. Rec. H. 1809 (daily ed. Mar. 22, 1994) ("hearings should be structured and sequenced in such a manner that... they would not interfere with the ongoing investigation of Special Counsel Robert B. Fiske, Jr.") (attached as Ex. F); Joint Statement ("This agreement is consistent with the provisions of H.R. Res. 394, adopted by the House on March 22, 1994, which states that any hearings conducted by House committees should be structured and sequenced so that they will 'not interfere with the on-going investigation of Special Counsel Robert B. Fiske, Jr.”). Chairman Gonzalez has assured Independent Counsel Fiske that the House Banking Committee's proceedings will not jeopardize his ongoing investigation. See Letter from Hon. H. Gonzalez to R. Fiske, dated July 1, 1994 (attached as Ex. G). In his July 1 letter, Chairman Gonzalez provided Independent Counsel Fiske with a list of potential |