Exempt from FOIA, US legislative support agencies follow uneven transparency standards

Reading room in the Library of Congress Jefferson Building. Source: https://www.house.gov/the-house-explained/legislative-branch-partners
Reading room in the Library of Congress Jefferson Building. Source: House.gov

Around the world, over one hundred nations have adopted freedom of information (FOI) laws that give their publics a right to request records from their governments. While these statutes are riddled with exemptions, marked by political interference, and often light on sanctions for those that block them, FOI laws remain essential tools for democratic governance everywhere they exist.

FOI laws have the greatest impact on transparency and accountability in states and nations where press freedom is strong and independent FOI ombudsmen and courts provide an adversarial venue where requesters can make appeals and challenge denials.

Sweden’s FOI law is the oldest in the world, passed in 1766. It wasn’t until July 4, 1966 that President Lyndon Johnson reluctantly signed the Freedom of Information Act (FOIA) at his ranch in Texas, codifying into law the American public’s right to access information from government agencies in the executive branch. 

During the Trump administration, the number of FOIA requests, FOIA lawsuits, and records censored have all reached record levels, driven from a combination of non-responsive agencies, reduced proactive disclosure, and active litigation by civil society groups.

Source: The FOIA Project

The nation’s canonical transparency law has taken on even more importance for good governance during the impeachment and trial of President Trump, when journalists, watchdogs, and activists have filed hundreds of FOIA requests that resulted in courts ordering disclosures of information that the White House sought to block. An era what the public statements of politicians and presidents cannot be trusted, FOIA matters more than ever as a means of informing the public of what is being done in their name.

More than 50 years after passing the nation’s most important transparency law, the United States Congress continues to be exempt from the Freedom of Information Act, which enables members of the public to specifically request public records that they care about from government agencies and officials. 

Congress did not, apply FOIA to itself in 1966, nor has it ever seriously considered doing so in the five decades of FOIA reforms since – although it enacted a series of amendments in the 1970s in the wake of Watergate that significantly strengthened the initial version of the statute, overturning President Gerald Ford’s veto.

While there are reasonable debates about whether that should be the case, as Judge Beryl Howell acknowledged at the National Archives during Sunshine Week in March 2019, it’s clear that legislatures and legislators can and do function when covered by FOI laws – along with the institutions that support them. 

As MuckRock’s analysis of states shows, 46 states and the District of Columbia now apply public records laws in some way to their legislative branch. 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 2019, 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. 

  • Is there a formal process to request documents, records, data or other information from your agency? If so, how do they work?
  • To whom should the press or public direct requests?
  • Is there an appeal or mediation process?
  • Are there any policies or statutes that govern how your agency should respond to requests for information or proactively discloses it?

The top level results of this informal survey:

  • A wide range of responsiveness across points of contact, from no reply to detailed answers to our questions
  • Broad disparities in how legislative support agencies have adapted or adopted FOIA-like processes without a formal mandate
  • Focused proactive disclosures made directly to the public online about budgeting, spending, or program performance, unlike the executive branch

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. (It’s worth noting, however, that the Office of the Clerk is not an agency.)

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.S. Congressional Budget Office (CBO) and U.S. Government Accountability Office (GAO), both of which responded to our inquiry. 

At the bottom of the gradient are the Library of Congress, the U.S. Capitol Police, and Architect of the Capitol (AOC), which have not.

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 GAO’s core work product – its reports are all online and searchable, including through an app. The agency published extensive multimedia resources, including a blog, podcasts, video, social media, and interactives. Along with a FAQ, press center, and expert directory, GAO maintains a FOIA page, on which its states that its “disclosure policy follows the spirit of the act.”

Chuck Young, the managing director of public affairs at the GAO, in an email responding to our questions, said the vast majority of the GAO’s work is publicly released on GAO.gov, including roughly 800 reports and Congressional testimonies every year – and the methodology for what they covered. 

“There are some reports that are classified for national security reasons,” he cautioned, “so you can’t access those unless you have a clearance. 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 2018. It’s a best practice for agencies across all three branches of government to follow.

If someone was interested in agency performance data or evidence from the GAO’s audits that supported their findings and conclusions, however, Young said they would need to request it.

“Since we’re in the Legislative Branch and report to Congress, not the White House, we are technically not covered by the FOIA laws,” said Young. “However, we try to follow the spirit of them anyway. You can learn more here about how this works.”

The Congressional Budget Office (CBO) provided the most extensive responses to our questions, while noting that as an office of the Congress, it was not subject to the Freedom of Information Act (FOIA).  

“To be both responsive and transparent, CBO provides information whenever practicable,” wrote Deborah Kilroe, the director for communications at the Congressional Budget Office, in response to our questions.

“In addition, Section 203 of the Congressional Budget Act (2 U.S.C. § 603) provides the public the ability to obtain from CBO certain data that CBO has obtained from other executive and legislative branch agencies, but this information is generally available more directly from those sources under the FOIA or exempt from disclosure,” she explained. 

“Section 203 of the Budget Act also requires CBO to maintain the same level of confidentiality as the law requires of the providing agency.”

Kilroe related that requesters can seek information through her office by mailing communications@cbo.gov or by contacting the Director for Communications (currently, her!) using the name and number publicly listed on the Press Center page of the CBO website or use the resources in the Contact CBO section.

Although CBO’s processes are not as formal as the procedures for agencies who are subject to the Freedom of Information Act, CBO prides itself on its responsiveness to both the Congress and the public,” she said. “As you noted in your request, however, CBO proactively discloses a large amount of information – including increasing amounts of code for its major economic models.”

What CBO does not have — as is true of every legislative branch support agency – is a mediation process or adversarial appeal mechanism in a court, like that outlined in the FOIA.

Congress created the Office of Government Information Services in the National Archives and Records Administration a decade ago to act as a federal FOIA ombudsman, but people frustrated with a denial, redaction, or simple non-responsiveness have little recourse beyond contacting their Member of Congress. 

“CBO does not have a formal appeal procedure, but if a requester is not happy with a particular response, the requester can and should seek reconsideration,” said Kilroe.

By way of contrast, the U.S. Capitol Police does not hold itself accountable to the FOIA, despite the importance that transparency and accountability have in law enforcement agencies in local, city, and federal government executive agencies. The U.S. Capitol Police has more than 2,300 officers and civilian employees, and an annual budget of $450 million – exceeding both the size and resources of many major American cities without commensurate transparency. 

Recommendations

Congress has the power to set its own rules for itself and the institutions within the First Branch that support it, which have the power of public laws. The papers and, increasingly, electronic records produced by Members, however, are left to individual members to archive, either in secret or in research libraries, even while confidential committee records eventually become publicly available through the National Archives. That exemption also applies to the legislative support agencies within the first branch of government – with the notable exception of the U.S. Copyright Office, which is subject to FOIA.

More enlightened policies and adoption of a series of open government data reforms comparable to those recently mandated by the 116th Congress for the executive branch would inform the press, watchdogs, Congress, and, most importantly, the public about how these legislative support agencies are conducting public business, with whom, and to what effect.

While there often is a need to provide confidential support to Congress, in many instances there is no reason for agencies to withhold many aspects of their work from public view. 

As Congress considers restoring the operations of the Office of Technology Assessment (OTA), its Members should also evaluate how and where different legislative support agencies could be more open, responsive, and accountable across their operations and inform the public they serve.

The Select Committee on the Modernization of Congress, in particularly, might find value from evaluating the impact of sunshine laws upon state legislatures around the USA and national parliaments in other democratic nations, including administrative officers and law enforcement agencies.

For instance, the void in public disclosure of new, unprecedented restrictions on press access during the Senate impeachment trial and confusion about their application demonstrates a need for more public engagement and information in the Capitol Police, perhaps modeled upon the Police Data Initiative that has spread across the nation.

Ultimately, legislators, support agencies, and their staff best achieve their missions when they not only arm the public with knowledge about how their public institutions are helping Congress legislate and oversee government and industry but take meaningful steps to use transparency to know themselves and function more effectively and efficiently.