To what extent should information about the Legislative branch be available to the public? Should federal courts be able to compel Congressional offices and agencies to disclose information to the public? To what extent should the Legislative branch adopt public disclosure laws that apply to the Executive branch – or go further?
This isn’t an academic discussion. Information is the lifeblood of Congress and access to that information is essential for oversight and lawmaking. Congress struggles to manage information, routinely losing track of important documents and making mistakes because stakeholders lack context.
The establishment of public-facing transparency requirements often result in significantly improved internal information sharing and retention practices. Those practices strengthen Congressional oversight of the Executive branch, which informs lawmaking. It also helps Congress manage its internal operations, which is no small task in a resource-constrained environment.
This Wednesday, public access to Legislative branch information will be the focus of three oral arguments before the DC Circuit Court of Appeals. Together they will share The contours of what access the public has a right to demand, and how Congress responds to those demands.
The Three Lawsuits
In Musgrave v. Warner, the question is whether a journalist, Sean Musgrave, can use the common law right of access to get a copy of the Senate Intel Committee’s torture report. That report covers the CIA’s use of torture post 9/11 on detainees during the Bush administration. The behavior, as you might recall, was okayed by secret opinions by the Department of Justice that were later withdrawn.
Longtime followers of this issue will remember that then-Sen. Intel Chair Feinstein wished to release all 6,700 pages of the committee’s report to the public, but the Bush administration dragged the declassification process on for years to delay its release. As a result, the Committee voted to release the executive summary with the plan to release the rest later. However, control of the chamber flipped and the new chair, in alignment with the Bush administration and the CIA, pulled back all the distributed copies of the report and refused to release them. Intel hawks at SSCI have kept it secret since then, but the report may be released at some point in the distant future under the Presidential Records Act.
Incidentally, the CIA was caught spying on the Senate Intel Committee during the course of its investigation.
In Leopold v. Manger, the issue is whether a journalist, Jason Leopold, can use the common law right of access to get a range of documents from the US Capitol Police. The litigation arises in the context of the massive failings of the USCP on January 6th as part of an effort to learn about what went wrong on that day and inside the Capitol Police over the preceding years. Leopold is seeking six categories of documents, including US Capitol Police Inspector General reports, annual financial statements, written directives, demonstration permits, and the like. The Capitol Police and/or other components provided to him a number of these documents.
Still at issue, however, are 101 USCP written directives in place on January 6th, semiannual Inspector General reports from 2015 to present, and other Inspector General reports from 2008 to the present. In the Executive branch, Inspector General reports are routinely made publicly available either directly or in response to FOIA requests. Several Legislative branch IGs also routinely make their reports publicly available.
In Schilling v. House of Representatives, plaintiff-appellant Schilling is seeking to obtain communications between the Chair of the House Oversight Committee, a committee member, and a staffer concerning the Committee’s alleged improper use of financial assistance and services from private consultants with respect to climate change issues.
The Legislative Branch and Transparency
When it comes to transparency, the Legislative branch is a weird place. On one hand, it releases all sorts of documents that contain its work product. As a general rule, you can see proposed legislation, committee reports, proposed amendments, spending by the chambers, and a ton of other information. Much of this is pre-decisional. Seeing work product before it is finalized is not common in the Executive branch, which usually protects information that is pre-decisional, declares wide swaths of information classified, and so on.
On the other hand, much of the work of the Legislative branch’s support offices and agencies are not released to the public. In the Executive branch, it is routine for Inspectors General to be independent and to release all their reports to the public. Not so for some of the six IGs in the Legislative branch. It is routine in the Executive branch for the work of law enforcement agencies to be subject to FOIA requests. There is no FOIA in the Legislative branch and the Capitol Police is one of the least transparent federal agencies.
In fact, in 2021, the National Archives FOIA Advisory Committee recommended that some aspects of the Freedom of Information Act, or a FOIA-like process, be extended to elements of the Legislative and Judicial branches. Their thoughtful report made clear they concluded these provisions should apply to support offices and agencies, but not to the working of policymakers in the House or Senate. Here are their recommendations:
Congress should adopt rules [or enact legislation] to establish procedures for effecting public access to legislative branch records in the possession of congressional support offices and agencies modeled after those procedures contained in the Freedom of Information Act. These should include requirements for proactive disclosure of certain information, procedures governing public requests for records, time limits for responding to requests, exemptions to be narrowly applied, and an appeal from any initial decision to deny access.
This seems reasonable to me. In fact, it seems reasonable to some of the Legislative branch agencies, who already have FOIA-like processes, notably the GAO and the Library of Congress. My colleague Alex Howard, writing on the First Branch Forecast in 2020, conducted a survey of how agencies handle requests for records and disclosure information to the public. (His report is here and his detailed findings are here.)
For example, does the Legislative branch entity publish its final work products? (GAO, CBO, and CRS publish their reports online.) Does it publish the findings of its investigatory bodies? (Are IG reports publicly available? What about ethics reports?) Are audits public? If the entity has a rulemaking or adjudicatory function, is that information publicly available? (Ex: determinations by the Office of Congressional Workplace Rights.)
With respect to the Capitol Police, Appropriators told the agency years ago to develop its own FOIA-like regulations, but it has so far failed to act. In December 2021, Demand Progress Education Fund released model FOIA regulations for the Capitol Police to adopt, drawing from the best FOIA practices in the Executive branch. They still have not acted, and have instead released a handful of their hundreds of IG reports under immense pressure from appropriators.
A Common Law Right of Access?
This takes us back to the litigation this week. While all Executive branch agencies are subject to a series of laws that push for proactive disclosure and require responsive disclosures, Legislative branch agencies largely are not subject to those requirements, nor are the courts.
But there are a series of common law principles, known as a common law right of access, that exist in our legal system without the enactment of laws. For example, the Supreme Court has recognized that you have a common law right to inspect judicial records.
To what extent does the common law right of access apply to the Legislative branch? This is hotly disputed. If it applies, how far does it go? The cases this week will help test the boundaries with respect to final records generated by a law enforcement entity inside the Legislative branch; a final report created by a Congressional committee with the contemporaneously stated intention of publicly releasing it; and records regarding inter-committee communications. Some of these records may come under the ambit of the Constitution’s Speech or Debate Clause protections, but others may not.
My view is that Congress should move forward and statutorily define what information support offices and agencies should make publicly available, including a process by which records can be requested, backed up by an enforcement mechanism. There is no principled reason for the US Capitol Police to be treated differently from the FBI and Secret Service, or for CBO to be treated differently from Treasury.
On the other hand, we should step gingerly when it comes to information that concerns the confidential processes inside Congress. Constituent communications, the give-and-take of negotiations, and confidential policy advice should not be released without permission. But generally shared information, from Dear Colleagues to CRS reports to committee reports and other official documents, should be routinely released as a matter of practice. And in those rare cases like the Torture Report, if the intent of the body creating it was public dissemination, that report should not be considered privileged material and withheld just because of a later change in political leadership.
Transparency in the Legislative branch is necessary for its legitimacy, to support its modernization, and allow for engagement with and accountability to its stakeholders.
