The War on the Freedom of Information Act

Updated on July 24 2017

The health-care clusterfudge continues. Senator John McCain has brain cancer. President Trump throws another public tantrum. Russia, Russia, Russia.

That about covers the Big Political Headlines of the week. Now for something really sexy: the creeping assault on the Freedom of Information Act.

Stop right there! No clicking over to that Tucker Carlson YouTube rant. This is another one of those ticky-tacky, below-the-radar issues that may sound like a nonprescription substitute for Ambien but is, practically speaking, super important—especially in the Age of Trump.

FOIA is what enables regular people to pester powerful federal agencies into handing over information about what they’ve been up to. FOIA’s website calls it “the law that keeps citizens in the know about their government.” Though a tad grandiose, that characterization is pretty much accurate. And never has such a tool been quite so vital as with the current White House, which has adopted a policy of unabashedly lying about pretty much everything.

It’s hardly surprising then that government accountability groups balked when, in early April, House Financial Services Chairman Jeb Hensarling directed multiple agencies under his committee’s jurisdiction to start classifying all communications with the committee as official “congressional records” not subject to FOIA.

Probably best to back up a tick: FOIA applies only to executive agency records. Congressional records are a different creature entirely (as are presidential records), enjoying greater privacy protections. But not every document that has been created by or sent to Congress qualifies as a congressional record.

“There has to be an expression of intent by Congress to treat a particular record or group of records as something that is a congressional record—that it belongs to Congress and is only being given to an agency for a specific purpose,” explained Lee Steven, assistant vice president with Cause of Action Institute, a pro-transparency, anti-big government nonprofit. “What the courts have in the past said is that you can’t put a blanket, before-the-fact designation” on such a broad category. As such, Steven told me, Hensarling’s directive is an egregious, possibly illegal case of overreach.

Hensarling’s letter to Treasury Secretary Steve Mnuchin wound up in the press for all to peruse. The chairman indeed appears intent on sweeping all agency communications with his committee out of the public eye. (I reached out to multiple Republican Finance staffers about this. No one responded.) This would include not just memos to or from the committee or documents generated by an agency in response to a committee request. Hensarling also wants to reclassify pre-existing agency records that are compiled and sent over to the Hill for any reason.  

Basically, if anyone at an agency is interacting with the finance committee in any way, Hensarling wants to make sure that you can’t find out any details about it.

You can see how this might not be great in terms of promoting government accountability.

In early May, 21 good-government groups sent an open letter to Hensarling, asking him to rescind his directive. CoAI took it a step farther, issuing a FOIA request to the Department of Justice—which oversees FOIA compliance for all agencies—for any interaction the department may have had with the Finance Committee on this issue. The Department of Justice has so far ignored that request, prompting CoAI to file a lawsuit aimed at goosing it to comply.

To clarify: CoAI is not some lefty resistance group looking to make life hard for a Republican administration or Congress. It is generally considered a conservative organization. (The liberal Media Matters huffed in 2015 when CoAI was annoying the Obama White House: “The group has received funding from the Koch brothers' financial network, and its [now former] executive director worked for Charles Koch and for the House Oversight Committee under Republican Rep. Darrell Issa.”)

So to review: What you have here is a conservative group suing a conservative Justice Department for ignoring a FOIA request concerning a conservative House chairman’s efforts to kneecap FOIA.  

Even my head hurts at this point.

Steven clarifies that CoAI’s suit against the Justice Department, for which oral arguments begin next month, may not have an initial impact on Hensarling’s directive. (Where the case ultimately goes will depend on whether DoJ hands over the requested communications—or maybe cites Hensarling’s directive as an excuse not to; what those communications say; whether the White House was involved; and so on.) “This is sort of a first step,” said Steven.

But make no mistake: The ultimate goal is to stop lawmakers from undercutting one of the key tools the public has for keeping an eye on its government.

“We’re not saying that the idea of congressional records is completely off base. Not at all,” stressed Steven. “But this directive, as written, is way too broad.”

For its part, committee Republicans say they “take transparency seriously.” Hersarling's directive, the committee's communication director, Sarah Rozier, told me, “protects not only the ability of congressional committees to conduct oversight and investigations of the executive branch but also whistleblowers who come to committees with important information.”

Rozier also stressed that leaders from both parties have staked out similar legal positions over the years (though such attempts have often been curtailed by the courts, argues CoA), that Hensarling acted on the advice of the House Office of General Counsel, and that other chairmen have been sending out similar directives.

Certainly, no one is suggesting that Hensarling is the only lawmaker looking for a little extra cover. CoAI has a near identical suit already making its way through the courts, stemming from a squabble it got into with the Obama-era IRS’s dealings with Congress’s Joint Committee on Taxation. “The JCT basically did the same thing as what Hensarling is doing here, with respect to the IRS,” said Steven. The ruling on that case, he noted, should provide a good indication of how this one will fare.

It’s as inevitable as Trump’s next Twit-fit: Those in power dislike the public nosing around in their business and are forever looking to shield themselves from scrutiny. But when that happens, the public needs to push back. Hard. No matter which team is in charge. And no matter how unsexy the details of the battle may be.

Michelle Cottle is a former contributing editor at The Atlantic.