A national government watchdog group filed a lawsuit on Friday claiming the Treasury Department did not respond to its Freedom of Information Act request regarding a letter sent from a congressman instructing several federal agencies to decline those very requests.
Congressman Jeb Hensarling, a Republican from Texas and chair of the House Committee on Financial Services, sent a letter dated April 3 to Treasury Secretary Steven Mnuchin, declaring that communications and documents produced between the committee and the federal agency will remain in the committee's control and will not be considered "agency records" — thereby making them exempt from FOIA requests.
Open government groups have said in the past that the letters appear to be a way to conceal documents from the public.
The letter reads that since the Committee on Financial Services has legislative and oversight jurisdiction over the Treasury Department, all records of communication between the two offices and any documents produced remain in the committee's control — even when in the physical possession of the Treasury Department.
As BuzzFeed News has previously reported, Hensarling sent similar letters to an additional 11 agencies — many of which agreed to conceal some of their communications from the public. The Treasury Department confirmed that it received Hensarling's letter, but did not tell BuzzFeed News it they would comply with the directive.
Several organizations — including the American Civil Liberties Union — said at the time that Hensarling's actions set "a troubling precedent."
On Friday, American Oversight — an organization promoting transparency in government — filed a lawsuit claiming the Treasury never responded to two FOIA requests sent in May for documents relating to Hensarling's directive.
Hensarling's office didn't immediately return a request for comment. A spokesperson for the US Treasury said they do not comment on pending litigation.
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.
American Oversight's executive director, Austin Evers, told BuzzFeed News that Hensarling's letter gave American Oversight "so much pause," because "this is a member of Congress trying to rewrite a statute in a completely unorthodox way."
American Oversight's request also asked for communication between Treasury and the committee concerning proposed legislation or administrative actions relating to financial regulation — information the Treasury is obligated to disclose, according to Evers.
The records requested were either created or obtained by the Treasury and relate to the agency's business, thereby making them subject to FOIA, according to the lawsuit.
Evers told BuzzFeed News that the organization filed the lawsuit because it is "deeply concerned of the aggressive steps the chairman is taking" to hide this information from the public.
He also said that the communications between the two offices are of "intense interest because of what's on Congress's docket right now" — including tax reform.
"These are issues that matter to the American public," Evers said. "We're trying to force the agency to turn over documents they have an obligation to turn over."
The Treasury received the requests and assigned a tracking number, according to the lawsuit. Evers told BuzzFeed News the law required the Treasury to respond to American Oversight's request within 20 days.
"Through Treasury's failure to respond to American Oversight's FOIA requests within the time period required by law, American Oversight has constructively exhausted its administrative remedies and seeks immediate judicial review," the lawsuit reads.
According to the lawsuit, Treasury also did not notify American Oversight as to whether it will withhold the requested records under any of the statute's exemptions.
"If [the Treasury Department officials] want to bow to the chairman over a bogus letter, then we'll see them in court," Evers said.
Mary Ann Georgantopoulos is a reporter for BuzzFeed News and is based in New York.
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