These FOI laws are, however, unevenly applied to administrative records, communications, finances, and the myriad other forms of information generated by legislative activity, oversight, and the business of government.
While Congress is not subject to the FOIA, the House and Senate both proactively disclose enormous amounts of information about Members, staff, personnel, legislative activity, from draft bills to final laws, votes, committee reports, ethics data, transcripts and video archives from various proceedings, and spending, along with disclosures from individual offices and committees. In the fall of , the Demand Progress Education Fund sent a series of questions to these agencies seeking information about how they handle requests for records and disclose information to the public without requests.
You can read the full results of our survey of legislative support agencies in an online spreadsheet. As more agencies respond to our inquiries, we will update it as a living document. Some legislative branch agencies and offices proactively disclose huge amounts of information in a structured data format, disclose what they could not proactively disclose, and follow a FOIA- like process to respond to requests for information.
For instance, the Office of the Clerk is a shining example of how a given entity can disclose across many types of records through a modern website but not publish administrative or performance data about the office and its staff itself. In contrast, most legislative support agencies proactively disclose very little information, make it difficult to figure out who to contact — posting online forms — and do not have formal processes in place to respond to requests.
At the top of the transparency gradient for congressional support agencies sits the U. At the bottom of the gradient are the Library of Congress, the U.
The CBO has a remarkable FAQ , transparency webpage , comprehensive contact page with points of contact for cost estimates, Congressional affairs, and press, and demonstrated commitment to be open. The CBO even posts the computer code and documentation for some of its analyses, mirroring best practices from academic and data journalism community, and has published its future plans for transparency.
The agency published extensive multimedia resources, including a blog, podcasts, video, social media, and interactives. But we do list the title of those reports as well.
Listing the titles of records parallels the best practice of publishing enterprise data inventories that Congress codified into law with the passage of the Open Government Data Act in See Lee v. Kelley , 99 F. 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.
Department of Defense , F. EPA , Civil No. Ashland Oil, Inc. 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.
Circuit case. See FTC v. Owens-Corning Fiberglas Corp. 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. FTC, supra , F. This is not to say, however, that agencies are without discretion to make broad FOIA disclosures to individual Members of Congress under appropriate circumstances.
Accord Chrysler Corp. Brown , U. 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. 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.
Sells Engineering, Inc. 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.
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. More specifically, we use cookies and other tracking technologies for the following purposes:.
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