At least three federal government agencies have agreed to seemingly conceal official communications with a congressional committee from public information requests, following letters sent last month by the chairman of the House Committee on Financial Services.
Congressman Jeb Hensarling, a Republican from Texas, sent letters in April to the heads of several federal agencies his committee oversees, declaring that communications and documents produced between the two offices will remain in the committee's control and will not be considered "agency records" — therefore exempt from Freedom of Information Act requests.
"The Committee expects that the [government agency] will decline to produce any such congressional records in response to a request under the Freedom of Information Act or any other provision of law or agreement," the letter reads in part.
The Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, and the National Credit Union Administration all responded to Hensarling's letter agreeing to decline requests to release documents if requested under FOIA.
Last week, BuzzFeed News first reported Hensarling's letter was sent to the Treasury Department. BuzzFeed News on Monday reviewed letters sent to an additional 11 agencies from the Committee on Financial Services.
The House Committee on Ways and Means sent a similar note to the Centers for Medicare and Medicaid Services, according to an email reviewed by BuzzFeed News.
A spokesperson for CFPB confirmed the agency is "declining to produce records of the House Committee on Financial Services." The Office of the Comptroller of the Currency and the National Credit Union Administration did not immediately respond to a request for comment.
The Freedom of Information Act ensures that any person has the right to request access to federal agency records or information. While Congress itself is exempt from FOIA, its correspondence with agencies is subject to disclosure and is commonly requested by reporters and others engaged in oversight work.
Jeff Emerson, a spokesperson for the House Committee on Financial Services, told BuzzFeed News the letters came on the advice of the House Office of General Counsel.
"Congressional communications with executive branch agencies are exempt from Freedom of Information Act (FOIA) requests whenever Congress expresses the intention that such communications are to retain their status as congressional records," Thomas Hungar, House general counsel, said in a statement.
"Over the course of the past four decades, congressional Committees and Members have frequently expressed that intention and the federal courts have routinely and consistently enforced these well-established legal principles. The House Office of General Counsel provided legal advice to the Committee on Financial Services regarding these long-established legal principles and practices, and the letters sent by the Committee to agencies under its jurisdiction are consistent with that advice and use language provided by the Office," Hungar added.
Press freedom lawyers said they have never seen such a request before and have called it "deeply troubling."
“The effort by certain people in Congress to keep agencies from telling the American people what they’re doing does push the boundaries of what has been decided before,” Adam Marshall, attorney for the Reporters Committee for Freedom of the Press, said, explaining that there is no statutory definition in the law of what an "agency record" is.
“And given FOIA’s purpose and its goal of keeping the American people informed, I would question why people in Congress are trying to push those boundaries," he added.
Other agencies, including the Securities and Exchange Commission, the Department of Housing and Urban Development, and the Treasury Department, have acknowledged receiving Hensarling's letter but are is still reviewing the request.
"Commission staff recognize the Committee's interests in maintaining control of congressional records and are diligently reviewing the Committee's request that the Commission decline to produce the records described in your letter in response to requests under the Freedom of Information Act," the April 28 letter from the SEC states.
The letter, sent by SEC Director Keith Cassidy, states that the agency is awaiting Chairman Jay Clayton's Senate confirmation before responding "more substantively." Clayton was confirmed by the Senate on May 2. A spokesperson for the SEC declined BuzzFeed News' request for further comment.
The Treasury Department, which also received the letter on April 3, confirmed that it is reviewing the request, a spokesperson told BuzzFeed News.
The Department of Housing and Urban Development, led by Ben Carson, replied to Hensarling's letter on May 3 indicating that the agency has been granted an extension by which to respond to the committee's letter.
A spokesperson for HUD did not immediately respond to BuzzFeed News' request for comment.
Emerson's statement added that the committee takes transparency very seriously.
"Doing this protects not only the ability of congressional committees to conduct oversight and investigations of the executive branch but also whistleblowers who come to committees with important information," he said. "They are sometimes named in communications between committees and agencies and they must be protected."
Rep. Maxine Waters, a Democrat from California and the ranking member of the House Committee on Financial Services, issued a statement calling Hensarling's letter "the height of hypocrisy."
"This is another case of Republicans’ ‘do as I say, not as I do’ approach," Waters said in a statement, adding that Hensarling has made "intrusive and aggressive demands of agencies" for years now.
"And while Congress does have that right, it is the height of hypocrisy for him to take such extraordinary measures to shield himself from the oversight of the American public," she added. "People should ask themselves: What is he trying to hide?"
Hensarling responded to Waters' statement with a letter dated May 8, saying she had more than a month to express her disagreement but instead waited until asked by the press.
He also added that each FOIA request will be evaluated "on a case-by-case basis with an eye toward disclosure to the maximum extent feasible."
"Let me be clear," he wrote. "I take transparency very seriously, and the letters that were sent to the executive agencies do not mean that the Committee will advocate for the withholding of all records."
If you work for a congressional committee or a government agency and have sent or received a note about declining FOIA requests, email firstname.lastname@example.org or contact BuzzFeed News securely and anonymously here.
Read the agency responses here:
Read the letters from the committee to the agencies here:
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