![]() 1978) ("The principle is important that disclosure of information can only be compelled by authority of Congress, its committees and subcommittees, not solely by individual members."), cert. Such a construction also fully comports with the access rules traditionally applied in non-FOIA contexts, which limit congressional access along exactly the same lines. § 552a(b)(9) (identical "line" drawn under the Privacy Act of 1974). ![]() of the Government Operations Comm., 89th Cong., 1st Sess. 10 (1965) Federal Public Records Law: Hearings an H.R. 11-12 (1966) ("Members of Congress have all of the rights of access guaranteed to 'any person', and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions.") S. First and foremost, the FOIA's legislative history makes it clear that precisely such a construction of subsection (c) was intended. This approach to the issue, Murphy notwithstanding, is strongly compelled by several considerations. Insofar as the Murphy opinion indicates otherwise, it should not be followed. Even where a FOIA request is made by a Member clearly acting in a completely official capacity, such a request does not properly trigger the special access rule of subsection (c) unless it is made by a committee or subcommittee chairman, or otherwise under the authority of a committee or subcommittee. Therefore, so that there should no longer be any doubt or hesitation among federal agencies on this point, it is now stated unequivocally, as a matter of Department of Justice FOIA policy, that the "line" within subsection (c) should be drawn between requests made by a House of Congress as a whole (including through its committee structure), on one hand, and requests from individual Members of Congress on the other. However, there is just no getting around the fact that the Murphy opinion, on its face, is based entirely upon its aberrational reading of subsection (c), and this has given pause to many agency officials considering access requests from individual Members of Congress. In the past, the Department of Justice has not fully confronted Murphy, but instead strained to minimize its significance to subsection (c) determinations by rationalizing that subsection (c) "was not indispensable" to Murphy's outcome. But the Murphy opinion's analysis and application of subsection (c) are quite troubling. To be sure, the "non-waiver" outcome reached in Murphy seems entirely correct, particularly according to the law of waiver as it has developed under the FOIA. In so doing, Judge Greene's opinion interpreted subsection (c) expansively, suggesting that it require unexempted FOIA access for any request made by a Member of Congress in his or her official capacity. Circuit refused to find "waiver" under such circumstances, but it did so by relying exclusively on the operation of FOIA subsection (c). Greene (sitting by special designation), the D.C. In an opinion written by District Court Judge Harold H. While the congress man involved had an undeniable official interest in the records' subject matter (a proposed public works project within his district), it was undisputed that he had obtained them in his capacity as an individual Member, not through a formal committee or subcommittee request. In Murphy, a FOIA requester argued that the Army had "waived" its right to protect requested records under Exemption 5 because it had provided the records to a Member of Congress. Department of the Army, 613 F.2d 1151 (D.C. Circuit's highly questionable opinion in Murphy v. Such phrasing leaves somewhat unclear exactly which requests should be treated as special ones "from Congress." Unfortunately, this has been clouded even further by the D.C. The exact meaning of this language, though, is less than crystal clear, as it succinctly states only that " is not authority to withhold information from Congress." 5 U.S.C. In responding to such requests, with their inherent implications for Executive/Legislative Branch relations, federal agencies can face troubling disclosure decisions and are often uncertain as to where they should, or must, "draw the line."įortunately, the FOIA contains language within its subsection (c) specifically addressing the subject of congressional access. Such requests may be made for a variety of different purposes - such as in aid of a specific or general legislative function, on behalf of a constituent, or even as a matter of a Member's primarily personal interest. OIP Guidance Congressional Access Under FOIAĪ particularly delicate issue arising under the Freedom of Information Act is the proper treatment of FOIA requests received from Members of Congress.
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