Investigation Update: OPM Provides Deficient FOIA Response on Congressional Oversight Policy

For the past year, Cause of Action Institute (“CoA Institute”) has been investigating rumors that the Trump Administration is directing federal agencies to ignore congressional oversight requests from Democratic legislators.  Various reports (here and here), which detail contentious interactions between congressional staffs and employees at the General Services Administration (“GSA”) and the Office of Personnel Management (“OPM”), allege that the directive “not to cooperate” with individual Members’ records requests was originally delivered by Uttam Dhillon, Special Assistant to the President.  The earlier issuance of an opinion letter by the Department of Justice’s Office of Legal Counsel seemed to corroborate these press reports.

As I discussed in a September 2017 op-ed in The Hill, the Administration’s actual congressional oversight policy remains ambiguous.  On July 20, 2017, the White House disavowed the OLC opinion letter as a statement of government-wide policy following severe criticism by Senator Chuck Grassley.  Yet records received by CoA Institute under the FOIA suggest that either the OLC opinion is still in force or the White House has yet to uniformly apply its actual policy.  For example, following our successful appeal of a GSA FOIA response, the agency disclosed GSA Order ADM 1040.3, dated July 24, 2017, which expressly states that the OLC opinion remains the agency’s—and, presumably, the Administration’s—official policy.  Our request for public clarification has gone unanswered.

Now, a recent FOIA response from OPM only confuses the matter further.  As part of our investigation, CoA Institute sent a FOIA request to OPM seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight and records requests.  We also requested copies of records evidencing White House directives on pre-production consultation or review of requests from Congress or under the FOIA.  OPM was only able to locate a single email linking to the OLC memo, but without any further details concerning its implementation at the agency, let alone its continued relevance.

Like the GSA’s initial failure to locate responsive records, OPM’s response is curious because multiple media reports have established that Jason Simmons, OPM’s then-Chief of Staff, directed the agency’s congressional liaisons to process only those oversight requests co-signed by Republican committee chairmen.  Yet no such directive was located and disclosed.  Moreover, with respect to the records that were released, OPM withheld the names and email addresses of its employees.  It is therefore unclear who at the agency was reviewing the OLC opinion letter or for what purposes.  We have filed an appeal challenging the adequacy of OPM’s search efforts, as well as its withholdings under FOIA Exemption 6.  If the agency were to undertake a supplemental search, some much needed clarification could be forthcoming.

Ryan Mulvey is Counsel at Cause of Action Institute

Is President Trump Directing Agencies To Ignore Democrats’ Oversight Requests?

The transparency community was abuzz last week when Politico reported that the White House was directing federal agencies to ignore oversight requests from Democratic legislators. According to unnamed “Republican sources,” a White House lawyer “told agencies not to cooperate” with record requests from the minority. Politico described this as “amount[ing] to a new level of partisanship in Washington[.]”  But is that the case?

There is a dearth of publicly available evidence as to the Trump Administration’s actual policy. The White House has been cagey in providing clarification. Politico reported that a White House spokesman insisted that agencies should “accommodate the requests of chairmen, regardless of their political party.”  But Republicans control both the House and the Senate and all congressional committee chairmanships, so the official policy, if any, remains unclear.

Some Democrats have claimed that officials at the Office of Personnel Management and the General Services Administration refused to disclose information without a committee chairman co-signing an official request. Cause of Action Institute filed Freedom of Information Act (“FOIA”) requests with those agencies today (here and here) in an effort to verify what Democrats might have been told because—again—the relevant records are not publicly available and agency officials deny the Democrats’ allegations. Similar stories of agencies remaining silent when approached by Democrats have circulated over the past few months.

The Project on Government Oversight offered a measured response to Politico’s report, suggesting that the Administration’s course appears consistent with Reagan-era Department of Justice (“DOJ”) guidance that effectively directs agencies to process requests from individual Members under the FOIA. That difference in treatment, as compared to requests from committees or those with official oversight responsibility, is particularly relevant to an agency’s inability to withhold information under 5 U.S.C. § 552(d).

A recent opinion letter from DOJ’s Office of Legal Counsel (“OLC”), however, does appear to complicate matters. The letter suggests that the Trump Administration may be charting a course into newer and less transparent waters:

The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members . . . do not have the authority to conduct oversight in the absence of a specific delegation . . . . Accordingly, the Executive Branch’s longstanding policy has been to . . . accomodat[e] congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight.

Unfortunately, the OLC opinion misframes the issue and, in doing so, provides a distorted view of the law. True: an individual Member’s request for information—regardless of political affiliation—“is not legally enforceable through a subpoena or contempt proceedings,” and, in that sense, the Member lacks “constitutional authority” to conduct formal oversight.  But nothing prohibits a legislator from requesting information for his own purposes, on behalf of a constituent, or to try to hold the Executive Branch accountable in a more colloquial sense of “oversight.”  As former White House attorneys Andy Wright and Justine Florence argue, Republicans often sought disclosure of records from the Obama Administration when they were not in control of Congress. In such instances, federal agencies should not, in theory, have ignored the requests, but instead followed DOJ guidance and processed them under the FOIA, just like a record request from any member of the general public.

The track record of the Obama Administration, in this respect, is hardly flattering. Indeed, Wright and Florence’s claim that the Trump “[A]dministration believes members of Congress asking for information about federal agencies are entitled to even less than members of the public,” is loaded with irony.  As attorneys in the Office of the White House Counsel, Wright and Florence personally helped President Obama lead one of the least transparent governments in American history. Cause of Action Institute was the first to expose the Obama Administration’s practice of “White House equities” review, which lead to the severe delay and occasional ignoring of both FOIA requests and congressional record requests, including those that had been issued under subpoena. Individual Members and committee chairmen alike were subject to this politicized review process.  If the Executive Branch has formally adopted a policy to obstruct Democrats, it would be a continuation of President Obama’s legacy of opacity and secrecy.

To summarize, the relevant legislative history and DOJ guidance states that a Member of Congress enjoys a statutory right of public access under the FOIA (and, similarly, the Privacy Act) to records of the administrative state. Minority oversight requests should be considered FOIA requests as a matter of course.  An individual Member would thus have the same right as anyone to “enforce” his request under the FOIA’s judicial review provision, 5 U.S.C. 552(a)(4)(B).  It is improper for OLC to suggest that agencies should only provide “discretionary responses,” say, “to correct misperceptions or inaccurate factual statements.”  An agency may exercise discretion to prioritize a Member’s request or to release exempt material from responsive records.  But an agency lacks the discretion to ignore a Member of Congress simply because of his or her political affiliation or position in leadership.

Ryan Mulvey is Counsel at Cause of Action Institute.

CoA letter to OPM, DOJ, OLC re: Hatch Act Guidelines

2013 4 8 CoA to OPM OSC OLC re Hatch Act