Am. Oversight, Inc. v. HHS, No. 17-827, 2025 WL 2718977 (D.D.C. Sept. 24, 2025) (Sullivan, J.)

Am. Oversight, Inc. v. HHS, No. 17-827, 2025 WL 2718977 (D.D.C. Sept. 24, 2025) (Sullivan, J.)

Re: Request for records concerning healthcare reform legislation in 2017, specifically agency communications with the U.S. House of Representatives Committee on Ways and Means

Disposition:  Denying plaintiff’s motion for summary judgment; granting defendants’ cross-motion for summary judgment

• Procedural Requirements, Agency Records:  The court relates that “[t]he pending dispute in this case is whether five sets of email communications and attachments are ‘agency’ records and therefore subject to disclosure under FOIA, or ‘congressional’ records and accordingly shielded from the public.”  “‘To qualify as an “agency record” subject to FOIA disclosure rules, “the agency must ‘either create or obtain’ the requested materials,” and “the agency must be in control of [them] at the time the FOIA request is made.”’”  “Here, the first part of the test, whether the Agencies created or lawfully obtained the requested material, is clearly satisfied and undisputed.”  “The second prong is, however, highly disputed.”  “The D.C. Circuit typically employs a four-factor test to determine whether the agency is in control of the relevant documents at the time of the FOIA request.”  “These four factors are ‘“(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or file.”’”  “The D.C. Circuit has also held, however, that a truncated test applies in some cases in which ‘special policy considerations . . . counsel in favor of according due deference’ to a governmental entity not subject to FOIA.”  “In such a situation, whether a document is an ‘agency record’ subject to FOIA ‘“turns on whether Congress manifested a clear intent to control the document.”’” “This modified analysis ‘“renders the first two factors of the standard test effectively dispositive.”’”  “Even though the D.C. Circuit has applied a modified test in circumstances in which Congress is involved, it has often concluded that the records at issue were ‘agency’ records and therefore subject to FOIA.”  “As the D.C. Circuit has recognized, it is common for agencies to communicate with Congress about a range of policymaking matters; recognizing a broad exception whenever Congress is involved in these communications would undermine FOIA’s preference for disclosure.”  “The Court will apply the two-factor test.”  “Although [plaintiff] raises compelling arguments as to why this case is distinct from other cases in which the two-factor test has been applied, it seems likely that special considerations still arguably exist even when Congress is involved in its lawmaking function and even if the Agencies disagree about who controls the records.”  “The Court does not need to resolve this issue, however, because it concludes that [plaintiff] and the Agencies prevail under either test.” “Accordingly, the Court will presume, without deciding, that the two-factor test applies.”
  
  Regarding the first factor, the court relates that “[t]he Committee argues that it clearly intended to maintain control of the documents at issue because the “Legend” was attached to at least one of the emails sent by committee staffers to the Agencies.”  “It relies exclusively on the contents of the Legend as unquestionable evidence that the Committee clearly intended to control the records and therefore it must prevail on its Motion for Summary Judgment.”  “The Legend said:  ‘This document and any related documents, notes, draft and final legislation, recommendations, reports, or other materials generated by the Members or staff of the Committee on Ways and Means are records of the Committee, remain subject to the Committee’s control, and are entrusted to your agency only for use in handling this matter.’”  “‘Any such documents created or compiled by an agency in connection with any response to this Committee document or any related Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control.’”  “‘Accordingly, the aforementioned documents are not “agency records” for purposes of the Freedom of Information Act or other law.’” “The Court concludes that the Committee has failed to show that it clearly manifested its intent to control the records at issue.”  “As explained below, the circumstances here do not show that Congress manifested its intent to control the records, but instead that Committee staffers affixed a generally applicable disclaimer to email communications with the Agencies in the course of discussing proposed legislation about health care reform.” “This non-specific assertion does not reflect the considered judgment that has previously been held to manifest Congress’s clear intent.”  “In reaching this conclusion, the Court reaffirms the importance of due respect for a coordinate branch of government.”  “The issue here, however, is whether Congress indeed manifested such an intent, and the Court concludes that it has not.”  “[T]he Court need not determine if or where the line is drawn between oversight and legislative functions to assess the context here.”  “What is relevant for purposes of determining Congress’s assertion of clear intent is that there is no evidence of any specific oversight investigation or other function occurring.”  “Put otherwise, the Committee may well have been engaging in its regular activities that included assessing information from the Agencies that informed its oversight function, but there is no other manifestation of this oversight function such as a letter or hearing in which the Committee set parameters for the information exchanged with the Agencies.”  “This absence alone does not necessarily mean that Congress could not have manifested a clear intent otherwise.”  “It is, however, instructive when comparing this case to other cases in which the D.C. Circuit has assessed such a manifestation.”  “The D.C. Circuit cases that developed the modified test and considered whether records were ‘agency’ or ‘congressional’ for FOIA purposes were in the context of Congress conducting oversight through hearings or other investigations.”  “There is no dispute here that the only mode of the Committee allegedly asserting its intent to control the emails and attachments was the Legend included in certain emails.”  “To the extent that the Committee argues that the context of an assertion of congressional intent has no bearing on whether such intent is clearly made for FOIA purposes, this argument is rejected.”  “The Committee mistakes the deference that exists once Congress manifests an intent to control with an analysis of whether Congress manifested such an intent.” “Here, the Committee neglects to provide any additional details about how the staffers purportedly manifested Congress’s intent and chooses to rest only on its general arguments that such information is ‘irrelevant.’”  “The Court disagrees.”  “Accepting the Committee’s representations that staffers were authorized to affix the Legend when they deemed appropriate, [plaintiff] points out numerous questions that remain unanswered such as the scope of the authorization to use the Legend, whether all staffers or only certain staffers had such authority, whether staffers were provided any guidance on when to assert the authority, and whether the staffers’ invocation of the authority was subject to any review.” “Without any further information from the Committee, all that the summary judgment facts show is that Committee staffers with undefined authority to do so ‘cop[ied] and paste[d]’, . . . the Legend into emails sent back and forth to Agency staff about possible healthcare reform.”  “There are no facts showing that the Committee made a specific determination that these communications should be subject to congressional control.”  “This falls far short of the clear manifestation of intent that is required to prevent disclosure under FOIA.” “Finally, and considered together with the details of the staffers copying and pasting the Legend when they deemed appropriate, the generic and far-reaching contents of the Legend further show that Congress did not clearly manifest an intent to control the records at issue.”  “As noted, the Committee relies exclusively on the Legend as showing its clear intent to control the records at issue.”  “The Committee does not assert, however, that the Legend was somehow specifically tailored to the records at issue.”  “Indeed, the Committee has said that staffers were authorized to affix the generic Legend whenever they deemed appropriate.”  “There is no doubt that the Legend was drafted to be wide-reaching and encompass a broad number of records that could be related to the exchange to which the Legend is inserted.”  “In context, this undermines the notion that Congress manifested a clear intent to control the specific records at issue.”  “As the Agencies point out, if congressional staffers could simply insert this footer into any email correspondence based on unspecified criteria and unclear, if any, review of such a decision, the window of exclusion from FOIA significantly widens, beyond a point that the D.C. Circuit’s careful analyses have previously allowed.”  “Due deference for a coordinate branch of government does not require such an approach.”  “On the contrary, respect for the separation of powers and the purpose of the Act mandate its rejection.”  “For all these reasons, the Committee has failed to show that the first factor warrants concluding that it clearly manifested its intent to control the disputed records.”
  
  “The Agencies describe in detail how they sought and used the information from the Committee for their decision-making about the proposed health care reform legislation and even to compile a recommendation to the President as to whether he should sign or veto the bill if it passed Congress.” “Based on the facts that the Committee does not dispute, but claims are irrelevant, the Agencies clearly used the documents as they saw fit.”  “[T]he Committee maintains that the Agencies’ actions and understanding are irrelevant to the Court’s analysis.”  “This means, according to the Committee, that the Court need not consider the second factor at all.”  “This argument fails for two main reasons.”  “First, as described above, the Court concludes that the first factor does not weigh in the Committee’s favor.”  “Second, the Committee’s argument ignores the fact that how the Agencies used the documents may be indicative of whether Congress manifested a clear intent to control them.”  “Therefore, while the questions of whether the Agencies or Congress exercised control over the documents may be ‘mutually exclusive,’ this does not render an inquiry into how the Agencies used the documents redundant.”  “Third, the Committee’s argument cannot be squared with precedent.”  “As the Committee concedes, the D.C. Circuit has clearly and repeatedly said that ‘[t]his focus renders the first two factors of the standard test effectively dispositive.’”  “Indeed, in cases that have applied the modified, two-factor test, the reviewing court has acknowledged how the agency used the documents, or viewed any restrictions on its ability to use the documents, as part of its analysis.”  “Based on the clear language that the D.C. Circuit has used and how it has conducted its analyses, the Court concludes that the modified test should be interpreted to give meaning to the second factor as relevant [to] ascertaining whether Congress manifested a clear intent to control records.”  “Because the Committee only refutes the relevance of this factor and not the Agencies’ representations about how they used the records, an argument the Court rejects, this factor weighs in favor of concluding that these are agency not congressional records.”  “It also recognizes, as has the D.C. Circuit, that agencies frequently communicate with Congress about a range of budgetary and policy matters, and that FOIA’s protections do not shield all of those communications from disclosure simply because of Congress’s involvement.”