Friday, May 12, 2017

House Committee Head Tells Federal Agencies To Stop Handing Out Communications With Congress To FOIA Requesters Can he do this? (Above The Law blog)

Our Florida Open Records laws are in many ways far superior to federal law, the Freedom of Information Act.

House Committee Head Tells Federal Agencies To Stop Handing Out Communications With Congress To FOIA Requesters
Can he do this?

Barack Obama promised the “most transparent administration ever,” then spent years undermining his own promise. The Trump Administration has made no such promises (other than “if you don’t like your Forever Wars, you can keep them…”) but it’s working overtime to make the faux transparency of the Obama years look like a high water mark in government accountability.

Multiple federal agencies are no longer allowed to communicate directly with the public through social media accounts. Anything posted must be approved by administration staff. is shut down and Trump has decided against following in his predecessor’s footsteps, refusing to release White House visitors’ logs.

The release of the logs was Obama’s idea. Nothing in the law compels release of this information. Trump’s refusal aligns him with many former presidents, but not with the public’s increasing transparency expectations. There was no exploitation of a loophole by Trump. Just a decision to restrict this administration to what the law says must be done, not what his constituency might expect.

The same goes for the latest non-transparency news to come from Washington. Whatever minimal transparency gains might have been achieved in the last several years are being rolled back by the controlling party.

The chairman of the House Committee on Financial Services sent a letter last month to the head of the Treasury Department instructing him to decline Freedom of Information requests relating to communications between the two offices, a letter that open records advocates called “deeply troubling.”


The letter reads that since the Committee on Financial Services has legislative and oversight jurisdiction over the Treasury Department, all records of communication between the two offices and any documents produced remain in the committee’s control — even when in the physical possession of the Treasury Department.

“The Committee expects that the [Treasury Department] will decline to produce any such congressional records in response to a request under the Freedom of Information Act or any other provision of law agreement,” the letter states.

This blanket FOIA refusal instruction wasn’t limited to the Treasury Department. The Associated Press obtained similar letters sent to a number of other agencies under the House Finance Committee’s control, including the Consumer Finance Protection Board, FEMA, and the FDIC.

As the letter points out… scratch that. It doesn’t. It’s only after reading the letter that you arrive at this unwritten conclusion. FOIA law exempts many congressional “records” from being liberated with FOIA requests. This includes communications between Congress and more FOIA-responsive agencies. One end — the end with the most power — can fully control the release of communications involving other agencies. This is all due to [ta-da!] laws Congress wrote and passed. You see how that works?

So, we can be irritated (and rightly so) that this appears to be more opacity meant to separate us from our public servants and separate our public servants from accountability, but unfortunately, this is all very lawful — a word deployed most frequently to defend actions which appear to be illegal. And here is the expected deflection:

“Congresswoman Waters has known about these letters for more than a month and she never raised any objections or said anything about them until a reporter asked,” committee spokesman Jeff Emerson said in a statement.

“Here’s the truth: The position taken by the Committee is fully consistent with the legal position Republicans and Democrats have jointly taken for over three decades to protect Congressional records.”

The problem here is the law. And the law must be changed by legislators — the very group least likely to order itself to be more transparent. As for the argument about opacity = better oversight? May I direct your attention to four years of leaked surveillance documents illustrating just how meaningless the term “oversight” is.

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