Good gov’t groups ask House committee to rescind recent FOIA guidance to Treasury

A group of about 20 open government and press organizations are asking the House Financial Services Committee to rescind recent communications guidance its chairman gave to the Treasury Department.

In an April 3 letter to Treasury Secretary Steve Mnuchin, Chairman Jeb Hensarling (R-Texas) said any communications between his committee and the department would be considered “congressional records” and the committee would retain control of those records even if Treasury physically possesses them. In addition, the financial services committees expects the department will decline to produce those congressional records in response to any Freedom of Information Act (FOIA) requests.

“Because of the often sensitive and confidential nature of such communications, and in order to ensure the unfettered flow of information necessary to assist the committee in performing its important legislative and oversight functions, the committee intends to retain control of all such communications and will be entrusting them to your agency only for use in handling those matters,” Hensarling wrote.

Yet the 20 organizations strongly disagree with the committee’s assertion that Treasury cannot and should not produce documents between the department and House Financial Services when responding to FOIA requests.

At the crux of the argument is whether communication between the department and the committee is considered an “agency record” or a “congressional” one.

“There is no question that records created or compiled by the Department of the Treasury in response to your committee’s communications and inquires are agency records, and therefore your blanket assertion of control is immaterial to the agency’s handling of these records under FOIA,” the organizations wrote in a May 9 letter to the House Financial Services Committee. “The agency must release these records if requested, subject to the legislated FOIA exemptions.”

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, Project on Government Oversight and the Sunlight Foundation are among the 21 organizations that signed the letter.

According to FOIA, agencies must release records upon request unless documents fall under one of nine exemptions — and if the agency decides that disclosing those records would present some kind of harm.

Documentation is considered an “agency record” if the agency created or obtained it and it was in the agency’s control when the FOIA request was made.

Agency records are subject to FOIA requests. Congressional records, however, are not.

The organizations’ letter cites specific case law, but they ultimately argue that records between congressional committees and government agencies are considered “agency records,” not “congressional” ones.

This isn’t the first communications policy that has left some good government groups and even a few lawmakers concerned about the free flow of information between agencies, the public, Congress and members of the press.

House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) recently warned Health and Human Services Secretary Tom Price of the implications that an internal communications memo may have on the department’s employees.

They’re referencing an internal memo from Price to HHS employees, which indicated that the department’s staff must first speak with HHS Office of the Assistant Secretary for Legislation before communicating with lawmakers or their staff.

In addition, communications directives from some agencies during the first few weeks of the presidential transition worried some lawmakers, who said the temporary notices violated whistleblower protection laws.

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