CoA Institute Sues FTC for Records Improperly Withheld Under Immunity Reserved for Congress

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Federal Trade Commission (“FTC”) for improperly withholding records related to the agency’s communication with the U.S. House of Representatives Committee on Oversight and Government Reform. CoA Institute requested these records under the Freedom of Information Act (“FOIA”) in October 2014.

The agency redacted records under various FOIA exemptions, but also refused to release information on the basis of the Speech or Debate Clause of the U.S. Constitution, a safeguard intended to avoid direct interference with legislative activities and protect members of Congress or their aides from judicial inquiry in certain court proceedings.

CoA Institute Counsel Ryan Mulvey: “The FTC failed to provide sufficient justification for its redaction of records. For example, the Speech or Debate Clause is neither a withholding statute nor a privilege that can exempt agency records from disclosure. The Clause is meant to protect lawmakers and staff from harassment in the courts. The FTC is the defendant in this case; the Oversight Committee is not. The FTC is abusing the Constitution to withhold records that the public has a legal right to review.”

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” The Clause is meant is to bar lawsuits that would hold individual legislators or their aides liable for legitimate congressional activities or that could interfere with ongoing congressional inquiry. It does not permit other branches of government, let alone an independent agency such as the FTC, to redact agency records simply because they implicate congressional communications.

From the FTC’s response in this case, it is unclear how the Committee on Oversight and Government Reform might have tried to invoke the Speech or Debate Clause through the FTC or how disclosure could interfere with ongoing congressional activity. The agency never indicated which investigations would be jeopardized by the disclosure of the requested records. Rather, the FTC simply claimed the Clause applied without giving an explanation as to why each record should be exempt. Similarly insufficient explanations were provided for the FTC’s use of the recognized FOIA exemptions.

CoA Institute’s lawsuit provides an opportunity for the court to review the Speech or Debate Clause and to limit agencies from using it to justify withholding records.

The full lawsuit is available here. Exhibits are available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: