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to produce documents to Plaintiff. Moreover, Defendants' departure from their

practice of not invoking the discretionary FOIA exemptions constitutes an abuse of discretion.

A. FOIA Expressly Prohibits Defendants from Invoking
Its Exemptions To Withhold Information from Plaintiff.

Although FOIA contains numerous exemptions, Congress made clear that FOIA "is not authority to withhold information from Congress." 5 U.S.C. § 552(d).

Under this Congressional savings clause and controlling case law construing it, Defendants may not invoke FOIA exemptions against Plaintiff, even if those exemptions would be applicable to a member of the public.

The legislative history of the savings clause states that "members of the Congress have all the rights of access guaranteed to 'any person' [by FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions." H.Rep. No. 1497, 89th Cong., 2d Sess. 11-12, 1966 U.S. Code Cong. & Admin. News 2418, 2429. The statute "explicitly notes that its exemptions from disclosure of agency records provide no authority to withhold information from Congress," Office of Legal Counsel, General Accounting Office Request for Documents of the Federal Emergency Management Agency, 4 Op. O.L.C. (Volume B) 773, 774 (September 10, 1980), and the courts have applied the savings clause as plainly as it is written. See, e.g., Florida House of Representatives v. United States

3/

Because Defendants possess no particular agency expertise with regard to FOIA and the Privacy Act, this Court reviews their interpretations of those statutes de novo. See United States Dep't of the Navy v. FLRA, 975 F.2d 348, 351 (7th Cir. 1992).

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Department of Commerce, 961 F.2d 941, 946 (11th Cir. 1992) (FOIA exemption 5 "may

not be exercised against Congress").

Defendants' reliance on the FOIA exemptions rests upon their view that

the FOIA exemptions apply to an individual Member of Congress just as they apply to a member of the public. Plaintiff's requests, Defendants apparently contend, do not come from "Congress." This contention is incorrect as a matter of law.

Congress acting as a whole or through its committees may obtain informa

tion from executive agencies and departments through many mechanisms, such as subpoenas, to which the FOIA exemptions obviously do not apply. The Congressional savings clause in Section 552(d) has no application in these contexts. That clause is meaningful only if read as a limitation on the ability of agencies and departments to assert FOIA exemptions in response to FOIA requests. Indeed, if Section 552(d) were not intended to eliminate the applicability of FOIA exemptions to FOIA requests from Congress, the Congressional savings clause--"this section is not authority to withhold information from Congress" -- would have been unnecessary. And, since "Congress" acting as a whole would have little need to resort to FOIA -- as opposed to subpoenas -- individual members of Congress are more likely to use FOIA and more in need of the

protection of the Congressional savings clause. Indeed, FOIA requests from

"Congress" acting as a whole are, if ever made, so rare as to be not worth considering."

Plaintiff and his staff are unaware of a single FOIA request ever made by Congress acting as a whole.

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The United States Court of Appeals for the District of Columbia Circuit has recognized this point. In Murphy v. Department of Army, 613 F.2d 1151 (D.C. Cir. 1979), the plaintiff sought documents pursuant to FOIA that had previously been released to a Member of Congress. When the Department of Army invoked FOIA exemptions to justify its refusal to release those documents to the plaintiff, the plaintiff argued that prior disclosure to the Congressman constituted a waiver of the exemptions. The court rejected this argument, reasoning that the FOIA exemptions are inapplicable to a Member of Congress acting individually, and accordingly disclosure of the documents to a Member did not waive the exemptions.

Specifically addressing plaintiff's argument -- implicit in Defendants'

position here -- that an individual Member is not "Congress" as that term is used in

former Section 552(c) (now Section 552(d)), the Court stated:

"Congress rarely acts as a body. Its manifold duties in
the legislative, investigative, and oversight fields are
almost invariably carried out through committees, committee
chairmen, individual members, and staff personnel. Thus, a
construction of section 552(c), which would relate it only to
action of Congress as an entity would render the provision
largely meaningless..

All Members have a constitutionally recognized status
entitling them to share in general congressional powers and
responsibilities, many of them requiring access to executive
information. It would be an inappropriate intrusion into
the legislative sphere for the courts to decide without
congressional direction that, for example, only the chairman
of a committee shall be regarded as the official voice of the
Congress for purposes of receiving such information, as
distinguished from its ranking minority member, other
committee members, or other members of the Congress." Id.
at 1156-57 (emphasis added).

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See also FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 974 & n.16 (D.C. Cir. 1980) (when Murphy applies, an executive agency "could not lawfully withhold

information sought by a member of Congress regardless of whether he complied with an applicable committee or subcommittee rule.")

The Congressional leadership itself has recently told a federal court that the Ranking Minority Member of a House Committee is the "functional counterpart of the Chairman [of the committee] on the majority party's side." Thus, Plaintiff's dual status as a Member of Congress and as the Ranking Minority Member of the Committee puts him squarely within the Congressional savings clause.

Finally, with one party controlling both Houses of Congress as well as the Executive Branch, a ruling that the Ranking Minority Member of a Committee can perform his or her oversight responsibilities only to the extent that the Chairman of the Committee is willing to allow issuance of subpoenas or other process in the Committee's name would create a truly untenable situation. The ruling party would be able -- if it chose to do so -- to preclude inquiry into mismanagement or even wrongdoing in the Executive Branch. Although this Court need not decide if this case presents such a situation, a ruling so thoroughly emasculating the rights of the minority

See also Moon v. CIA, 514 F. Supp. 836, 840 (S.D.N.Y. 1981) (Murphy "stressed that 5 U.S.C. § 552(d) specifies that the exemptions of Section 552(b) are 'not authority to withhold information from Congress.""); Exxon Corp. v. FTC, 384 F. Supp. 755, 762 (D.D.C. 1974) (Section 552(d) demonstrates that "[c]learly Congress intended that it should receive information not available to the public.").

Amici Curiae Brief of the Speaker and Bipartisan Leadership Group of the House of Representatives in Support of the Omnibus Motion to Dismiss The Indictment, United States v. McDade, Crim. No. 92-249 (E.D. Pa., submitted July 1, 1993) at 9 (relevant portions attached hereto as Exhibit B.)

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party would have grave implications, and could well undermine public confidence in the

federal government.

B.

The Privacy Act Provides No Basis for
Withholding the Requested Documents

/ from Plaintiff.

In addition to their reliance upon numerous FOIA exemptions, Defendants

have also cited the Privacy Act, 5 U.S.C. § 552a, as a basis for withholding the requested documents. After setting forth a prohibition on disclosure of certain records "to any person, or to another agency," the Privacy Act exempts disclosures "to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee." 5 U.S.C. § 552a(b)(9). The requested documents clearly pertain to a "matter within [the] jurisdiction" of the Committee. For the same statutory and policy reasons that moved the Court in Murphy, Plaintiff while acting in his official capacity must be considered exempt from the Privacy Act. Indeed, these very Defendants have previously recognized that disclosure of documents in confidence to a Member of Congress does not violate the Privacy Act. (Seidel Decl. ¶ 9 and Exs. 5, 6, 8.)

In addition, it is well-established that the Privacy Act "excepts from its prohibition on disclosure information that must be made available under the FOIA." Williams v. McCausland, 1994 Dist. LEXIS 353, Nos. 90 Civ. 7563 (RWS), 91 Civ. 7281 (RWS) (S.D.N.Y. January 14, 1994) at *5 (attached hereto as Exhibit C). Thus, whether an agency must release private information "requires a determination of whether such information would have to be disclosed under FOIA.

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