Communications between members of Congress and executive branch agencies should not be exempt from public disclosure under the Freedom of Information Act (FOIA), according to an amicus curiae brief filed by CREW in the D.C. Circuit Court of Appeals in support of American Oversight.
CREW’s brief urges reversal of a lower court ruling that allowed the government to keep secret communications between Trump administration officials and Republican members of Congress relating to attempts to repeal the Affordable Care Act in 2017. Even though nothing in FOIA’s text allows federal agencies to withhold communications with Congress, the district court held that such an exemption should be read into the statute under the so-called “consultant corollary” doctrine.
But the district court’s ruling contradicts settled precedents promoting transparency, perversely incentivizes partisan policymaking and could be expanded to allow agencies to withhold communications with any politically-aligned individual outside of the executive branch.
Any efforts to hinder FOIA oversight and limit the public’s insight into government decisions would have negative effects on the public’s ability to hold the government accountable. The district court’s decision should be reversed, or risk weakening critical oversight tools.