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FOIA Update: Policy Guidance: Release of Exempt Information to Members
of Congress: The Impact of the Murphy Decision

FOIA Update
Vol. I, No. 4

Policy Guidance

Release of Exempt Information to Members of Congress:  The Impact of the Murphy Decision

Two important Freedom of Information issues of concern to all agencies were recently discussed in a U.S. Department of Justice letter to the Federal Trade Commission (FTC):

(1) How should agencies handle requests from individual Members of Congress for exempt records, and

(2) What factors determine whether an exempt record which has been released to one person may subsequently be denied to another person.

The following article summarizes a May 29, 1980, letter from OILP to the General Counsel of the FTC, which was also released to all federal agencies and is available to the public.

The Justice Department's Office of Legal Counsel, Office of Legislative Affairs, and Civil Division all reviewed OILP's letter and concurred in the substance of it.

The FTC had asked what influence the case, Murphy v. Department of the Army, 613 F.2d 1151 (D.C. Cir. 1979), would have on an agency's discretion to release information to Members of Congress and whether Members of Congress could rely on that case to force release of information otherwise exempt from release under the Freedom of Information Act.

These questions arose because in Murphy the Army released to a Member of Congress a copy of an advisory legal opinion which technically was exempt from release under FOIA. Later the Army received a FOIA request from Timothy R. Murphy for the same document, and the Army denied release under 5 U.S.C. § 552(b)(5). Mr. Murphy sued and claimed that by giving a copy of the exempt document to the Member of Congress the Army had waived the exemption for that document. The Court of Appeals affirmed a lower court decision in favor of the Army, but part of the court's opinion seemed to indicate that members of Congress are legally entitled to exempt documents under FOIA subsection (c). To clarify this point, FTC sought guidance from the Justice Department.

Policy Favoring Release to Members of Congress

From a policy perspective, there is significant practical importance in maintaining a proper flow of information not only to Congress and its committees and subcommittees but also to individual members. A government organized on the principle of separation of powers requires a spirit of cooperation among the branches to operate effectively. Effective government requires a flow of information not only to support institutional knowledge but also to provide information to the individuals who comprise the institution.

Thus, when Members of Congress request information, agencies properly give due weight and sympathetic consideration. The legislator may have a need for access to documents which fall outside the public's right to know under FOIA. The individual member may seek information in his or her official capacity to assist a constituent, to develop and decide on proposed legislation, or to participate in the work of committees or subcommittees to which the member may belong or before which the member may appear. An agency should not lightly deny a request even for records exempt under FOIA if the member of Congress needs the records to carry out an official function. On the other hand, if the agency decides that one or more of the protectible interests reflected in the FOIA exemptions outweigh the member's need in a particular case, the question becomes more complex.

Exempt Records May be Withheld from Members of Congress

Where a requester happens to be an individual member of Congress but is not acting as the chairperson for a congressional committee or subcommittee, an agency may legally withhold records exempt under FOIA. This conclusion is based upon the following five considerations:

1. The plain language of FOIA subsection (e) is that FOIA is not authority to withhold information "from Congress." The word "Congress" is defined in Art. I, Sec. 1 of the Constitution to "consists of a Senate and a House of Representatives." Congress is thus an organized institution, and to equate each individual member with the institution merely on the basis of membership in it would be like treating a legal reference to a "board of directors" as referring equally to each individual director, or a reference to the Army as also referring to each soldier. Since Congress customarily acts through its two houses, the leaders of those houses, its various committees and subcommittees and the chairs thereof, and not through individual members as such, the ordinary meaning of the language of subsection (c) would not include each individual member.

2. Since FOIA was enacted, there have been many occasions in which Congressional committees and subcommittees and individual Members of Congress have asked agencies to provide records. The Justice Department has often responded to questions from agencies on the relation of FOIA subsection (c) to such requests. At least prior to the Murphy opinion, there was seldom any doubt that subsection (c) means basically that an agency cannot use a FOIA exemption to deny access to a record when sought by a Congressional committee or subcommittee. In other words, the provision serves to make clear that the exemptions in the Act were not intended to impair Congress's power to investigate. This is the same purpose that is served by the corresponding provision in the Privacy Act, 5 U.S.C. § 552a(b)(9).

While the Privacy Act provision safeguarding this Congressional power is more explicit and detailed, there is no reason to doubt that both provisions are essentially similar in purpose, meaning and effect. Moreover, since FOIA also applies to all records covered by the Privacy Act, the explicit limitations in the Privacy Act would be rendered wholly ineffective if "Congress" in FOIA subsection (c) is read to refer to each individual member.

3. The requesters in a celebrated FOIA case, which arose in the District of Columbia and subsequently was considered both by the Supreme Court and by Congress, were in fact individual members of Congress. EPA v. Mink, 410 U.S. 73 (1973). They sued for access not only as a "person" under FOIA subsection (a)(3), but also as members of Congress. Their contention that they were entitled to access to exempt matter under FOIA in their capacity as members of Congress was rejected by the District Court, and thereafter the District Court, the Court of Appeals, and the Supreme Court dealt with the dispute as a normal FOIA case, turning on whether the records sought were exempt. The next year, Congress enacted changes in FOIA that were expressly designed to overturn certain features of the Supreme Court's decision in Mink, but Congress like the higher courts left undisturbed the District Court's ruling that an individual member of Congress is not legally entitled to records that are exempt under FOIA.

4. If any one of the 535 members of the national legislature in his capacity as such had the power to compel access to exempt records under FOIA, the effect might be to release information which most members of Congress wish to protect and which they thought was protected when they enacted FOIA's exemptions. For example, exempt records include some belonging to the FBI and CIA as well as trade secrets and other exempt private sector information.

5. Finally, the Murphy opinion itself indicates that it does not mean that any Member of Congress is entitled under FOIA to access to exempt records. The opinion states, "What is at issue is the construction to be given to that provision of the law [i.e., subsection (c)] which safeguards congressional access to executive information notwithstanding the FOIA exemptions and the relation of that provision to the question of when confidentiality is waived or destroyed by disclosure to a third party." (Emphasis supplied.) When the opinion discusses subsection (e) alone, it sets forth the legislative history and the meaning of subsection (c) in clear terms, with the following quotation from the House Report on subsection (c): "Members of the Congress have all of the rights of access guaranteed to 'any person' by [the FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions."

Effect of Prior Release on Agency's Power to Withhold an Exempt Document from Another Person

The second main issue dealt with in the U.S. Department of Justice letter to the FTC is when can an exempt record be released to one person and be withheld from another? Although the opinion in the Murphy case relied upon FOIA subsection (c) to support its rejection of Murphy's contention that the Army had "waived" the exemption by giving a copy of the document to the Member of Congress, that subsection was not indispensable to the decision. Even if subsection (c) had never been enacted as a part of FOIA, the result in Murphy should have been, and probably would have been, the same. Mr. Murphy was not legally entitled to the document under FOIA because it was exempt. The prior release of a copy to the Member of Congress did not change this status.

Abuse of Discretion--A Limitation Upon Agencies

The basic legal limitation upon agency discretion in acting upon successive requests for the same exempt record is the familiar principle of abuse of discretion. An agency cannot give a reporter for one newspaper a copy of an exempt document in the morning and deny the same document to a reporter for another newspaper in the afternoon, at least absent very extraordinary circumstances. Similarly, denying access to an exempt document sought by one side of a litigated dispute, after having voluntarily given the opposite side a copy of it, may involve unfairness amounting to an abuse of discretion. Such actions, sometimes described as arbitrary and capricious, discriminatory, unfair, or unreasonable, help to define the meaning of an abuse of discretion.

Discretionary Release of Exempt Documents Does Not Waive the Exemption

Absent any abuse of discretion, however, agencies are authorized to exercise their discretion to grant or deny access to an exempt document. They are not subject to any absolute requirement that discretionary access to a particular person necessarily means that access must be granted to all persons.

For example, the Court of Appeals for the District of Columbia Circuit upheld per curiam the decision by the Justice Department to deny general access to the FBI investigatory report on Sirhan Sirhan, an exempt document, even though, it had voluntarily given the same document to the local county prosecutor who was preparing for Sirhan's murder trial. Committee to Investigate Assassination, Inc. v. Department of Justice, No. 3651-70 (D.C. Cir. October 24, 1973). The Department's release to the prosecutor was unquestionably discretionary, and its subsequent withholding from a random requester was not an abuse of discretion.

Another illustration would be an agency record containing detailed information on the hazardous characteristics of a new chemical or drug. Such a record might be covered by Exemption 4, 7, 5, or even 1, depending on additional facts and depending on the circumstances. A voluntary release by an agency of the document to those responsible for protecting the public from dangerous chemicals and drugs in a friendly foreign government, or with similar functions in a state or local government, or even to a private physician treating a patient who had been exposed to the chemical or drug, would neither legally nor rationally be sufficient to require its release to a random requester.

A further type of situation is where an exempt internal document containing advice on a complex and controversial problem is voluntarily made available to a professor or similar expert with specialized knowledge or experience on the subject, for the purpose of ensuring that the document's advice to the decision-maker is the best that can be furnished. In this situation, written comments on the document from the professor would often be exempt, and it would be strange if the price of obtaining such additional expert advice were automatically to terminate the exempt status of the internally generated advice.

A final illustration might be records properly classified for defense reasons and covered by FOIA Exemption One. These records may be voluntarily released to, for example, a defense equipment manufacturer, and subsequently may be denied to other requesters. The manufacturer certainly cannot legally compel such access under FOIA, and there is no provision in FOIA which, like subsection (c), could be construed as supporting this difference in treatment between the manufacturer and the subsequent requester. The answer is that no such provision is needed, since the exemptions are discretionary, and exercises of discretion which do not constitute an abuse of discretion are valid and proper.

Agency Discretion in Releasing Exempt Documents Consistent with FOIA Objectives

These conclusions about the scope of and limitations on an agency's discretion to release an exempt document to one person and not another are consistent not only with the central openness objective of FOIA, but also with its egalitarian elements.

As to openness, a decade of government-wide experience in applying the Act to great numbers of requests, plus over a thousand decided FOIA lawsuits with as many still pending, are convincing evidence that there is often serious uncertainty, likely to breed costly and protracted controversy, over whether the records sought by the requester are exempt.

To promote the Act's openness objectives and to minimize the burdens of administration and litigation, agencies have repeatedly been encouraged to make discretionary releases of exempt or arguably exempt matter when granting the particular request will not harm legitimate public or private interests. Some advocates of openness have further urged that agencies release records to a FOIA requester without even considering whether the document is exempt, if the agency perceives no practical danger in granting the particular request. But in cautious and precedent-conscious bureaucracies, such releases will be substantially discouraged if agencies believe that a particular release may carry a penalty in the loss of such discretion as might otherwise exist for possible subsequent requests, in different and unforeseeable circumstances, where the same or similar documents are sought.

As to the egalitarian element in FOIA, it was expressed in one of the major reforms in the 1966 enactment of FOIA, namely, the substitution of "any person" as the requester, in lieu of FOIA's predecessor, the public information section of the 1946 Administrative Procedure Act, which had given a qualified right of access to records only to "persons properly and directly concerned."

This change means that statutory entitlement to access under FOIA to nonexempt records is generally available to all persons. Moreover, whether the records are exempt under FOIA depends generally on the terms of the several exemptions, and these terms generally pertain to the records themselves, e.g., to their contents, origin, purpose, function, or effects if disclosed, and do not pertain in most circumstances to the identity of the particular requester.

However, if the records are exempt under the terms of the statute, the prefatory language of the exemption subsection confirms the agency's discretion in acting on requests for exempt matter. That prefatory language, in subsection (b), states that "This section [i.e., FOIA, including the "any person" provision in subsection (a)(3),] does not apply to matters that are [exempt]". This discretion does not mean that there are no legal limits on unequal treatment of different persons in releasing and withholding an exempt records. But it does mean that where exempt records are concerned, such limits are those which restrain abuse of discretion.

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Updated August 13, 2014