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