By: Liz Hempowicz
The Freedom of Information Act (FOIA) was originally enacted in 1966 and has been subject to rounds of amendments, Executive Order updates, and litigation surrounding interpretation in the time since. In theory, the FOIA provides a window into federal agencies and compels the agencies to disclose information if requested properly. There are nine categories of information that are exempt from FOIA requests, including national security information and business records originating outside of the agency. Under these exemptions, federal agencies have wide discretion to withhold information that would be subject to the FOIA otherwise. The interpretations of the FOIA, the invocation of the exemptions, and the perceived openness of each Executive since the enactment of the FOIA have been the subject of much analysis and litigation. However, one area that generates the least FOIA conversation concerns the exclusion of the legislative branch from the reach of the Act. Admittedly, I am not the first to ask, “Why exactly is Congress unreachable by the FOIA?” However, we should raise this conversation again, especially considering the continued spotlight on the lackluster openness of the current administration.
The cynical answer to the question is simple: Congress enacted the FOIA and therefore had an interest in keeping its own documents, studies, and communications from the public.
However, when he originally signed the FOIA into law, President Johnson stated “A democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.” Johnson went on to say, “freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted.” In a memorandum about the FOIA to the heads of executive departments and agencies, President Obama stated, “A democracy requires accountability, and accountability requires transparency.”
Nowhere in his presidential message did Johnson highlight the benefits of excluding Congress from the scope of the FOIA. Nowhere in his memorandum does Obama explain why Congressional actions do not require the same accountability and transparency as agency actions do. Wendy Ginsberg, an analyst at the Congressional Research Service, attempted to explain the discrepancy between the purpose of the FOIA and the limited reach of its application by pointing to Congress’ belief “that its own deliberations and proceedings were adequately subject to public observation.” Additionally, Ginsberg couches this argument on the assertion that Congress passed the FOIA in response to “perceived secrecy problems in the executive branch.” (Emphasis added).
Current methods of public observation of Congressional activity include accessing Congressional records, made available online here, and contacting Congressional offices directly. However, this access comes nowhere near the access offered by the FOIA into federal agencies. The FOIA creates a statutory obligation for agencies to respond to requests for information with either production of the documents or substantiated reasons why the agency did not furnish the information. Furthermore, the FOIA creates a cause of action if an agency does not meet these obligations. Conversely, because Congress is not subject to the FOIA or any other similar legislation, if a request for information or explanation of action is denied, the requestor has no avenue for redress.
In the wake of this past summer’s NSA and FISC/FISA related leaks the need for citizen based Congressional oversight has never been more apparent. The backlash against Congress and the revelation of the lack of operational knowledge of domestic surveillance programs is just a symptom of this problem.
The exemptions of the FOIA, while cumbersome, curtail disclosures of information that would do more harm than good to the public in its disclosure. Therefore, there is no argument that subjecting Congress to the FOIA or a similar statute would influence the ability of our elected officials to do the jobs we have entrusted to them. The irony that Congress passed the FOIA to open a window into the government, but did not build windows in to its own walls is one that we should not ignore.
It may seem like it is too much to ask that Congress subject itself to the FOIA or a similar statute, but are we as a citizenry okay with electing representatives who can keep their decision making separate from our scrutiny? I can think of no compelling reason why Congress should not open itself up to the transparency and openness standards that it deems appropriate for the executive branch.