People For the American Way Foundation

Biden Judge Rules that Federal Agencies Cannot Withhold Communications from Congress under Freedom of Information Act

Biden Judge Rules that Federal Agencies Cannot Withhold Communications from Congress under Freedom of Information Act

Judge Brad Garcia, nominated by President Biden to the DC Circuit, wrote a 2-1 decision holding that federal agencies cannot withhold communications from members of Congress or their staffs under Exemption 5 of the Freedom of Information Act (FOIA). The May 2024 decision was in American Oversight v United States Department of Health and Human Services.

 

What is the background of this case?

 In 2017, House Republican leaders sought to repeal the Affordable Care Act. As this effort was underway, American Oversight filed a FOIA request with the Department of Health and Human Services (HHS) and the Office of Management and Budget (OMB), seeking all communications with members of Congress or their staffs concerning health care reform. The agencies did not respond in a timely fashion as FOIA requires, so American Oversight filed a FOIA suit in federal district court.

The agencies produced some documents during the litigation, but refused to produce most such communication, claiming that they were the equivalent of “intra-agency memorandums or letters” under Exemption 5 of FOIA and thus could be withheld. This was pursuant to a “consultant corollary” recognized by the DC Circuit in 1971, under which documents received by an agency from an outside consultant and used in its deliberative process can be considered “intra-agency” and withheld under Exemption 5.

Based on the earlier precedent, a district court agreed with the agencies and granted them summary judgment.  American Oversight appealed to the DC Circuit.

 

How did Judge Garcia and the DC Circuit Rule and Why is it Important?

 In a 2-1 ruling, Judge Garcia reversed the lower ocurt and directed that summary judgment be granted to American Oversight, so that they would receive the requested communications under FOIA. Judge Garcia explained that in the 2001 Klamath case, the Supreme Court had  “expressed skepticism” about the “consultant corollary”, suggesting that it should extend at most to documents from outsiders that are “similarly situated” to agency employees in that they have no “independent stake” in the matter at issue.

Since Klamath, Judge Garcia continued, the DC Circuit had not considered whether an agency could use Exemption 5 to withhold documents from a government outsider “with its own stake in the outcome” of the issue. This case squarely presented that question, and Garcia ruled that they may not do so, in light of the Klamath ruling and an analysis of FOIA and other precedent. Garcia also rejected an argument for withholding by dissenting Judge Robert Wilkins, writing that cases concerning whether an agency waives Exemption 5 by sharing documents with Congress did not apply in this case.

Judge Garcia’s  opinion is obviously important to American Oversight and its efforts to uncover communications between members of Congress and federal agencies concerning efforts to repeal health care reform legislation. It also sets an important precedent in the DC Circuit relating to FOIA that will increase the transparency of and public access to agency records. In addition, it as an important reminder of the significance of promptly confirming fair-minded nominees to our federal courts