I can’t believe I agree with Maxine

By on Sep 16, 2017


House goes to court to protect secrecy of records

An effort to fight a FOIA lawsuit for proposals on health care reform wins bipartisan backing.


The House of Representatives is taking legal action to make sure that federal agencies don’t release congressional records to the public through the Freedom of Information Act.

The move, which came Friday evening in a lawsuit demanding access to discussions about health care reform between the Trump administration and Congress, threatens to cut off a mechanism liberal watchdog groups were using to gain insight into closed-door negotiations on a variety of policy issues.

In legal papers filed in U.S. District Court in Washington, House General Counsel Thomas Hungar said the move to protect congressional correspondence was authorized by a House body known as the Bipartisan Legal Advisory Group. While the panel of top House leaders has divided in the past on sensitive issues, Hungar wrote that they “voted unanimously to authorize this intervention … to protect the institutional interests of the House.”

Hungar complained that last week the Department of Health and Human Services and the Office of Management and Budget gave the liberal group American Oversight four documents that originated with the House Ways and Means Committee. He argued that legal precedents established that congressional documents were exempt from disclosures pursuant to FOIA.

The House’s legal filing also complains that the Trump administration is failing to respect Congress’s prerogatives.

“Defendants have already demonstrated their unwillingness to defend that interest by failing to treat those documents as congressional records not subject to disclosure under FOIA and instead producing portions of those documents to plaintiff,” Hungar wrote. “The Committee ‘should not need to rely on a doubtful friend, when it can represent itself,’” he added, quoting a prior case.

The move comes after the chairman of the House Financial Services Committee, Rep. Jeb Hensarling (R-Texas), drew attention and a backlash from pro-transparency groups after he sent letters in April to about a dozen federal agencies warning them not to release congressional correspondence or submissions. He called the materials “sensitive and confidential.”

Some Democrats questioned Hensarling’s move.

“It is the height of hypocrisy for him to take such extraordinary measures to shield himself from the oversight of the American public,” said Rep. Maxine Waters of California, the financial panel’s ranking Democrat.

A spokeswoman for Speaker Paul Ryan did not immediately respond to a request for comment on the new court action.

A Democratic leadership aide said the decision to step into the case was consistent with past practice.

“Congressional records are not subject to this statute,” said the aide, who spoke on the condition of anonymity. “It has long been the position of the bipartisan leadership of the House of Representatives that congressional requests to agencies are also not subject to FOIA.”

The executive director of the group that sued for the records said he was troubled by the House’s actions.

“In a rare moment of bipartisanship, House leaders came together late on a Friday night to try to block the American people from learning the truth about the Obamacare repeal effort,” said Austin Evers of American Oversight. “From the very beginning, health care negotiations between the Trump administration and Congress have taken place in secret, and with talks reportedly starting again, it speaks volumes that Congress’s first priority is to keep the public in the dark.”