By ROBERT M. GARSSON
WASHINGTON Showing
his traditional independence,
Rep. Henry B. Gonzalez told the
House leadership last week he
plans to conduct Whitewater
hearings on his own terms.

In a letter to Speaker Thomas
S. Foley released Monday, the
banking committee chairman
pointedly noted that he had not
been consulted about the scope
of the hearing and said some ar-
eas of inquiry not mentioned by
the House leader should be in-
yestigated.

In particular, he cited the con-
tacts among the White House,
Treasury, and Resolution Trust
Corp. on the failure and disposi-
tion of Madison Guaranty Sav-
ings and Loan, an Arkansas
thrift with which President Clin-
ton had dealings.

improper conduct in the han-
dling of Madison.

"A hearing that fails to ad-
dress this will be seen as arbi-
trary, incomplete, and not credi-
ble, as editorial comment
already shows," the Texas Dem-
ocrat said.

The Democratic and Republi-
can leaders of the House agreed
last week to hold "several days"
of hearings on three aspects of
the Whitewater-Madison affair,
probably beginning next month.

Congressional sources said
Democrats have used the pros-
pect of Whitewater hearings to
press Republicans on key legis-
lative issues, including interstate
branching and President Clin-
ton's Community Development
Financial Institutions bill.

Democratic aides have argued
that it is important to move both
measures to the President's desk
by July 4 in order to clear the
decks for Whitewater hearings
in July. Both measures are the
subject of House-Senate negoti-
ations.

In addition, the debate over

ments today in an effort to
broaden the scope of the
hearings.

In the House, Rep. Gonzalez
is warning now that "there is a
great deal of work to be done"
before hearings can be held.

The banking committee chair-
man also warned in his letter to
Speaker Foley that Republicans
would likely insist on widening
the scope of the investigation.

"It is to be expected that they
will argue that the planned hear-
ings are incomplete since they
do not include the failure of
Madison, its regulation, and is-
sues related to Madison's opera-
tion," he said. "It is also to be
expected that those complaints
will be accompanied by disrup-
tive tactics in the Committee
and in the House."

White House aide who commit-
ted suicide last year.

Although Rep. Foley had said
the panel should explore cir-
cumstances surrounding Mr.
Foster's death, Rep. Gonzalez
said congressional committees
are not capable "of acting in any
way as a coroner or homicide in-
vestigator."

Rep. Gonzalez also said the
panel should not review the way
in which Mr. Foster's papers
were handled after his death. Be-
cause Mr. Foster served as the
Clinton's personal attorney on
some matters, some here have
suggested that documents relat-
ed to Whitewater may have been
removed.

The three subjects of public
hearings agreed to by the House
leadership are: White House
contacts with Treasury and the
RTC on Madison Guaranty,
whether Mr. Foster's death was
a homicide or suicide, and
whether the White House acted
"I see no reason to further tor- properly in handling Mr. Fos-
ment the family of Vincent Foster's paper's following his
ter," he said, referring to the death.
U

As we discussed yesterday, I look forward to meeting with the Leadership soon to discuss hearings pursuant to the resolution of the House and joint House leadership. Prior to that discussion I thought it would be useful to set forth my thoughts and concerns.

First and foremost, I promise that any investigation conducted under my leadership will be fair and careful. The integrity of this Committee will not be compromised. Any such undertaking will entail some costs, and I will need your assistance in arranging necessary funds, facilities and temporary staff. These needs will be modest, but are beyond what the Committee has available.

Second, since I was not consulted about the scope of hearings, I believe further discussion is necessary. For example, I see no reason to further torment the family of Vincent Foster. No Congressional Committee is in any way capable of acting as coroner or homicide investigator, even if there were some legislative purpose to be served in pursuing this issue. I believe the investigative work of Federal and local police agencies and by Mr. Fiske should be sufficient. I would urge that this subject be deleted, on the ground that it lacks legitimate purpose, the Congress is ill equipped to undertake the task, and any Congressional review would inevitably be criticized rightfully, as inexpert.

An

In addition, it is questionable for this Committee to review the handling of Mr. Foster's papers after his death. The issue here is whether evidentiary material has been handled in a lawless way, which is properly a police question, not a legislative issue. investigation of the handling of the papers necessarily opens the issue of the contents of the papers--matters that Mr. Fiske has asked that we not address. But for the Committee not to look into the papers will raise questions about our thoroughness. Already, there is editorial comment about questions that won't be addressed under the formulation announced Wednesday evening. If the Committee looks into how Mr. Foster's papers were handled, it is difficult to see how issues related to those papers can be avoided.

As to the contacts between the White House, Treasury and Resolution Trust Corporation related to the failure and resolution of Madison Guaranty Savings and Loan, this leads directly into the question of whether there was improper conduct in the handling of Madison. A hearing that fails to address this will be seen as arbitrary, incomplete and not credible, as editorial comment already shows.

Finally, the minority party is sure to insist on broadening the scope of hearings. It is to be expected that they will argue that the planned hearings are incomplete since they do not include the failure of Madison, its regulation and issues related to Madison's operation. It is also to be expected that those complaints will be accompanied by disruptive tactics in the Committee and in the House.

with respect to timing, I do not believe we should be tied to an arbitrary time such as thirty days after Mr. Fiske completes the Washington phase of his investigation. Depending on the weight of evidence to be gathered and examined and the number of witnesses to be found and interviewed, the time could be sooner or later than that. The issue here is that a credible hearing can take place only as preparation requirements allow.

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. In 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 trigger 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)).

J

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 disciosure 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 statutory interpretation was suggested.