The chairman of the House Committee on Financial Services sent a letter last month to the head of the Treasury Department instructing him to decline Freedom of Information requests relating to communications between the two offices, a letter that open records advocates called "deeply troubling."
Congressman Jeb Hensarling, a Republican from Texas and the committee's chair, sent letter dated April 3 to Treasury Secretary Steven Mnuchin. Also included on the letter were Ranking Member of the Financial Services Committee Maxine Waters, Director of the Office of Financial Research Richard Berner, and the Director of the Federal Insurance Office Michael McRaith.
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.
"The Committee expects that the [Treasury Department] 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 agreement," the letter states.
The Freedom of Information Act ensures that any person has the right to request access to federal agency records or information. There are certain exemption categories that allow an agency to withhold information including personnel and medical files and if the records are classified, among others.
By trying to retain ownership of the records, the Committee on Financial Services wants the documents to be congressional records. 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.
Hensarling went on to write that the Treasury can decline a FOIA request on the grounds that the documents do not belong to the Treasury and that they are constitutionally privileged.
Hensarling concluded the letter by demanding a response confirming the Treasury "will decline to produce any congressional records in response to a request under the Freedom of Information Act," no later than May 1.
Katie Townsend, litigation director for the Reporters Committee for Freedom of Press, said she has never seen a letter like this before and called it "very troubling."
Townsend said that FOIA requires government agencies to quote their own records — but there is no definition in the statute as to what constitutes an agency record.
The committee, she said, is trying create an argument that these records are not agency records and that they're not up to disclosure.
"But they're agency records, whether they admit to it or not," she said. "You can call a pig a dog, but it's still a pig."
She called this "deeply troubling."
"The purpose of FOIA is to shed light on what agencies are doing," she said.
Messages to the Treasury Department, Hensarling, and the Committee on Financial Services were not immediately returned.
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Daniel Wagner is an investigative reporter for BuzzFeed News and is based in Washington, DC.
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