It’s time to apply the Freedom of Information Act to the legislative branch
This post was written by Daniel Schuman for Americans for Prosperity Foundation’s 2023 Sunshine Week essay series on how government transparency and the Freedom of Information Act have transformed society.
The Freedom of Information Act is a cornerstone of an open and accountable government. It is time for that law to be extended to legislative branch support agencies.
Over the last sixty years, FOIA has fundamentally changed the relationship between the governed and those who govern through its provision of a legally enforceable mechanism for the public to obtain information of public interest. FOIA’s original purpose was to ensure the public has access to information held by the government and to provide a check against corruption.
When wielded by journalists, the public, academics, and civil society, FOIA’s effects include empowering the public to discover and redress waste, fraud, abuse, and malfeasance, as well as to foster information-sharing and collaboration among the public and private sector in ways that otherwise would not occur. Indirectly, it also serves the needs of Congress in obtaining information about the operations of the executive branch.
The FOIA applies to the executive branch, but does not currently extend to legislative branch support agencies. It is time to remedy that lacuna.
In 2021, the FOIA Advisory Committee of the National Archives recommended that “Congress should adopt rules or enact legislation to establish procedures for effecting public access to legislative branch records in the possession of congressional support offices and agencies modeled after those procedures contained in the Freedom of Information Act.”
If implemented, this would extend its reach to agencies including the Library of Congress, the Government Publishing Office, the Government Accountability Office (GAO), and the U.S. Capitol Police. There are compelling arguments in support of applying FOIA to these agencies.
Legislative branch support agencies are comparable to executive branch agencies, which are already subject to FOIA. Some legislative branch agencies have instituted a FOIA-like process to manage public requests, such as GAO and the Library of Congress, while other agencies, such as the Capitol Police, have not.
Applying FOIA or a FOIA-like process uniformly to these agencies would provide the public with access to information about how taxpayer dollars are being spent and ensure that the agencies are administered equitably and efficiently. It would address a significant gap in public and congressional understanding about their activities and could prevent tragedies such as the January 6 attack, which was facilitated in part by failures in the leadership of the Capitol Police. Demand Progress Education Fund has even gone so far as to publish model regulations that the Capitol Police could adopt.
FOIA would also provide accountability for these agencies by ensuring they are transparent in their operations and responsive to public inquiries. This includes making information publicly available about how agencies are spending taxpayer dollars and conducting their operations. It also provides an opportunity for review when requests for information are denied.
Finally, it is important to note that FOIA would not apply to deliberative process matters inside the agencies or the operations of political offices inside the legislative branch.
Members of Congress and their staff should not be subject to FOIA, nor should matters that relate to the internal deliberations of Congress. Already existing proactive disclosure rules address that information. While there are improvements that could be made to those rules, that should be done outside the realm of FOIA. Congress should draw the line about what’s subject to FOIA by separating issues of how it internally deliberates upon policy matters versus how the agencies operate.
The arguments in support of applying FOIA to legislative branch support agencies are compelling. These agencies are comparable to executive branch agencies and should be subject to the same transparency requirements.
Furthermore, FOIA provides accountability to agencies and would promote transparency in government operations. While certain exemptions would be necessary to protect sensitive information, the benefits of applying FOIA to legislative branch support agencies would be significant for the public, journalists, academics, and members of Congress.
Discover more thought-provoking essays on how government transparency and the Freedom of Information Act have transformed society.
Daniel Schuman is policy director at Demand Progress Education Fund.
