Office of Government Information Services (OGIS)

Public Comments Submitted by Jason R. Baron on March 15, 2021

March 15, 2021 

Via e-mail:

Alina Semo 
Director, Office of Government Information Services 
National Archives and Records Administration 
Washington, D.C. 

Re: Comments for the 2020-2022 FOIA Advisory Committee 

After having the opportunity to watch the Committee's last public meeting of March 3,  2021, I wish to provide the following comments for the Committee's consideration. 

In Daniel Schuman's presentation, he discussed recommendations for Legislative branch transparency, and proceeded to show a powerpoint slide listing his  recommendations in three categories under the headings "Easier," "Intermediate," and "Harder." (Public Meeting Video at 1:32:55). I wish to comment on two categories of his  recommendations.

First, under "Easier," he listed three categories for greater public access: Legislative branch copies of Inspector General reports; historical and current Congressional Research Reports;  and Congressional serial set & enacted laws. These three recommendations can be  unilaterally acted upon by the Legislative branch, without any need for legislation. The FOIA Advisory Committee should recommend in its final report that appropriate components of the Legislative branch simply make these records publicly available online. 

Second, in the "Intermediate" category, one of the recommendations included implementation of a "FOIA-like process for various Legislative branch support agencies."  This recommendation can be made stronger: the FOIA Advisory Committee should  recommend that Congress enact legislation to expand the scope of FOIA to include those parts of the Legislative branch that create "federal records." The Federal Records Act  defines the term "federal agency" to mean 

any executive agency or any establishment in the legislative or judicial branch of the  Government (except the Supreme Court, the Senate, the House of Representatives, and the Architect of the Capitol and any activities under the direction of the Architect of the Capitol). 

44 U.S.C. § 2901(14).

Expansion of the FOIA to portions of the Legislative Branch covered by the Federal Records Act would mean the inclusion of: the Library of Congress, the Government Accountability Office, the Capitol Police, the Congressional Budget Office, the Congressional Research  Service, the Copyright Office, the Government Publishing Office, and others. (Someone on the Committee should run down the complete list of Legislative components with NARA-approved  records schedules.) 

Moving towards greater congruence as between the scope of the FOIA and the Federal Records Act would also mean expanding the scope of FOIA to at least some portions of the Judicial Branch creating federal records. It makes good sense that FOIA be expanded to include certain Judicial Branch agencies which create federal records in performing policy  and administrative functions, such as the Administrative Office of the U.S. Courts and the Federal Judicial Center. I do not, however, recommend that FOIA extend to all records of the federal district or US circuit courts, especially given the public availability of judicial opinions and accompanying filings. 

The bottom line: current inconsistencies in the scope of the Federal Records Act and the Freedom of Information Act should be eliminated as much as possible. In the Executive branch, all federal records within the definition of 44 U.S.C. § 3301 are also "agency records" under FOIA, as the Courts have defined the latter term. Subject to limited exceptions, the same result should obtain for federal records created by the Legislative and Judicial branches. 

2. There was some back-and-forth colloquy at the public meeting about what the legal status is of legislative records transferred to NARA.  I recommend that the Committee review the U.S. Court of Appeals decision in Cause of Action v. NARA (2014).1  There, plaintiff filed a lawsuit to obtain access to the records of the Financial Crisis Inquiry Commission, a legislative commission set up to provide a report on the 2008 financial crisis.  After the Commission terminated its activities, its records were deposited with NARA pursuant to a letter from the Commission stating that the records were to be closed for five years and not made subject to FOIA.  Plaintiff claimed that notwithstanding the intent of the Commission, the fact that NARA controlled these records in its possession meant that their status had converted to being "agency records" subject to the FOIA.  Both the district court and U.S. Court of Appeals disagreed, holding that the usual tests under FOIA did not apply given NARA's sui generis status.

Thank you for the opportunity to comment.

/s/ Jason R. Baron

Professor of the Practice
Member of the 2018-2020 FOIA Advisory Committee

2014 WL 2135977 (D.C. Cir. May 23, 2014),