Requests by Individual Members of Congress for Executive Branch Information ( 2019 )

(Slip Opinion)
Requests by Individual Members of Congress
for Executive Branch Information
In reviewing requests from Congress, the Executive Branch’s longstanding policy has
been to engage in the established process for working to accommodate congressional
requests for information only when those requests come from a committee, subcom-
mittee, or chairman acting pursuant to oversight authority delegated from a House of
Congress. Departments and agencies, however, may appropriately give due weight and
sympathetic consideration to requests for information from individual members of
Congress not delegated such authority.
Only a committee chairman may request presidential records under section 2205(2)(C) of
the Presidential Records Act, unless the committee has specifically del egated that au-
thority to another member.
February 13, 2019
MEMORANDUM OPINION FOR THE FILES
This memorandum expands upon a letter opinion for the Counsel to the
President issued on May 1, 2017, in which we addressed certain questions
concerning the authority of individual members of Congress to exercise
Congress’s oversight authority. Authority of Individual Members of Con-
gress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. __
(2017) (“Oversight by Individual Members”). This memorandum also
memorializes more recent, informal advice provided to the General Coun-
sel of the National Archives and Records Administration (“NARA”)
concerning the authority of individual members to request presidential
records under the Presidential Records Act (“PRA”).
In Oversight by Individual Members, we concluded that “the constitu-
tional authority to conduct oversight—that is, the authority to make offi-
cial inquiries into and to conduct investigations of Executive Branch
programs and activities—may be exercised only by each House of Con-
gress or, under a delegation, by committees and subcommittees (or their
chairmen).” Id. at *1. “Individual members of Congress, including rank-
ing minority members,” we stated, “do not have the authority to conduct
oversight in the absence of a specific delegation by a full house, commit-
tee, or subcommittee.” Id.
Oversight by Individual Members “briefly explained” our views con-
cerning requests for information from individual members of Congress.
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43 Op. O.L.C. __ (Feb. 13, 2019)
Id. The Supreme Court has defined the congressional oversight authority
to consist of the inherent power of each House to “gather information in
aid of its legislative function” by means of compulsion, if necessary. Id.
Each House has the authority to delegate that function under its own rules
and procedures. Typically, however, Congress has not delegated such
authority to individual members of Congress who are not committee
chairmen. Although requests for information from individual members of
Congress do not constitute exercises of Congress’s oversight authority,
that does not mean that an individual member’s request should be treated
the same as a Freedom of Information Act request or a request from a
member of the general public. As a matter of comity, the Executive
Branch’s appropriate respect for the legislative functions of individual
members supports Executive Branch officials’ practice of giving due
weight and sympathetic consideration to those requests.
We recently addressed a related question in connection with the Senate
Judiciary Committee’s request for presidential records relevant to the
nomination of then-Judge Brett Kavanaugh to the Supreme Court. In July
2018, the Chairman of the Judiciary Committee requested from NARA
special access to a substantial volume of records concerning Kavanaugh’s
service in the Office of the White House Counsel during the George W.
Bush Administration. Following that request, the Ranking Member of the
Committee requested additional records—those relating to Kavanaugh’s
subsequent work as Staff Secretary—that the Chairman had specifically
declined to request. The PRA provides that a committee of Congress may
request nonpublic records when needed for the conduct of its business. 44
U.S.C. § 2205(2)(C). Consistent with NARA’s past administration of this
statute, as well as our interpretation of a similar provision under the
Privacy Act, we informally advised NARA that only a committee chair-
man may request presidential records under section 2205(2)(C), unless the
committee has specifically delegated that authority to another member.
I.
The Constitution vests “[a]ll legislative Powers” in “a Congress of the
United States, which shall consist of a Senate and House of Representa-
tives.” U.S. Const. art. I, § 1. The Supreme Court has recognized that one
of those legislative powers is the implicit authority of each House of
Congress to gather information in aid of its legislative function. See
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Requests by Individual Members of Congress for Executive Branch Information
McGrain v. Daugherty, 273 U.S. 135, 174 (1927). As the Court has ex-
plained, “[a] legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself
possess the requisite information—which not infrequently is true—
recourse must be had to others who do possess it.” Id. at 175. Because
“mere requests for such information often are unavailing, and . . . infor-
mation which is volunteered is not always accurate or complete,” though,
“some means of compulsion are essential to obtain what [information] is
needed.” Id.; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
504 (1975) (“[I]ssuance of subpoenas . . . has long been held to be a
legitimate use by Congress of its power to investigate.”); Response to
Congressional Requests for Information Regarding Decisions Made Un-
der the Independent Counsel Act, 10 Op. O.L.C. 68, 81–82 (1986) (“Re-
sponse to Congressional Requests”). For purposes of this memorandum,
we refer to each House’s formal “power of inquiry . . . with process to
enforce it,” McGrain, 273 U.S. at 174, as that House’s “oversight” author-
ity.
Each house may exercise its oversight authority directly—for example,
by passing a resolution of inquiry seeking information from the Executive
Branch. See 4 Lewis Deschler, Deschler’s Precedents of the United States
House of Representatives ch. 15, § 2, at 2304–23 (1994) (describing the
practice of resolutions of inquiry and providing examples); Floyd M.
Riddick & Alan S. Frumin, Riddick’s Senate Procedure 882 (1992) (“The
Senate itself could investigate or hear witnesses as it has on rare occa-
sions[.]”). In modern practice, however, each House typically employs its
oversight authority “through delegations of authority to its committees,
which act either through requests by the committee chairman, speaking on
behalf of the committee, or through some other action by the committee
itself.” Application of Privacy Act Congressional-Disclosure Exception to
Disclosures to Ranking Minority Members, 25 Op. O.L.C. 289, 289
(2001) (“Application of Privacy Act”); see also Alissa Dolan et al., Cong.
Research Serv., Congressional Oversight Manual 65 (Dec. 19, 2014).
“The theory of a committee inquiry is that the committee members are
serving as the representatives of the parent assembly in collecting infor-
mation for a legislative purpose” and, in such circumstances, “committees
and subcommittees, sometimes one Congressman,” are authorized to
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43 Op. O.L.C. __ (Feb. 13, 2019)
exercise the parent assembly’s authority. Watkins v. United States, 354
U.S. 178, 200–01 (1957).
The Senate authorizes committees, “including any subcommittee of any
such committee,” to hold hearings, subpoena witnesses, and require the
production of “correspondence, books, papers, and documents,” Senate
Rule XXVI(1), while the House authorizes “a committee or subcommit-
tee” to exercise similar authority, House Rule XI.2(m)(1). In turn, a com-
mittee’s chairman generally may act on behalf of the committee, at least
in the absence of a contrary vote of the majority of its members. See
Letter for David S. Ferriero, Archivist of the United States, National
Archives and Records Administration, from Chuck Grassley, Chairman,
U.S. Senate Committee on the Judiciary at 2 (July 30, 2018); see, e.g.,
House Rule XI.2(m)(3) (providing that the full committee determines the
“rules” and “limitations” for a delegation to a chair). Although the proce-
dures for these compulsory processes vary based on the issuing committee
or subcommittee, they all derive their authority from a delegation by the
relevant House as a whole. See, e.g., Response to Congressional Requests,
10 Op. O.L.C. at 82 (“exercise of subpoena power must be authorized by
the relevant House” (citing Reed v. County Comm’rs, 277 U.S. 376, 389
(1928), and McGrain, 273 U.S. at 158)); Congressional Oversight Manual
at 24 (“Committees of Congress only have the power to inquire into
matters within the scope of the authority delegated to them by their parent
body.”).
By contrast, individual members of Congress who are not serving as the
chairman of a committee, including ranking minority members, “generally
do not act on behalf of congressional committees.” Application of Privacy
Act, 25 Op. O.L.C. at 289; see also id. at 289–90 (concluding that “the
Privacy Act’s congressional-disclosure exception does not generally apply
to disclosures to ranking minority members,” because ranking minority
members “are not authorized to make committee requests, act as the
official recipient of information for a committee, or otherwise act on
behalf of a committee”). Under existing congressional rules, those mem-
bers have not been delegated the authority to institute official committee
investigations, hold hearings, or issue subpoenas. See Congressional
Oversight Manual at 65. For example, the Rules of the House state that a
subpoena generally “may be authorized and issued . . . only when author-
ized by the committee or subcommittee, a majority being present,” except
that the committee may delegate subpoena power to a chairman. House
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Requests by Individual Members of Congress for Executive Branch Information
Rule XI.2(m)(3)(A)(i); see also Response to Congressional Requests, 10
Op. O.L.C. at 82 (“The rules of each [House] committee flesh out some-
what the requirements for issuance of a subpoena, specifying in particular
if, or under what circumstances, the chairman of the full committee may
issue a subpoena without a vote of the committee.”); Michael L. Koempel,
Cong. Research Serv., R44247, A Survey of House and Senate Committee
Rules on Subpoenas 4–10 (Jan. 29, 2018) (summarizing House rules). The
Standing Rules of the Senate delegate to each committee responsibility to
establish subpoena procedures, Senate Rule XXVI(2), and while some of
those committees delegate subpoena authority to a chairman, none author-
izes an individual member who is not a chairman to issue a subpoena
unilaterally. See A Survey of House and Senate Committee Rules on Sub-
poenas at 11–16 (summarizing Senate rules).
Federal courts have recognized that “no Senator and no Representative,
is free on . . . his own to conduct investigations” without congressional
authorization. Gojack v. United States, 384 U.S. 702, 716 (1966); see
Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (“[D]isclosure of
information can only be compelled by authority of Congress, its commit-
tees or subcommittees, not solely by individual members; and only for
investigations and congressional activities.”); Lee v. Kelley, 99 F.R.D.
340, 342 n.2 (D.D.C. 1983) (denying Senator leave to intervene to request
access to sealed materials on the grounds that the Senator “appears as an
individual Senator, without Senate authorization, in what is undeniably
an investigatory role”), aff’d sub nom. S. Christian Leadership Conf. v.
Kelley, 747 F.2d 777 (D.C. Cir. 1984). As the Congressional Research
Service has summarized, individual members of Congress not acting
pursuant to delegated oversight authority are entitled only to “the volun-
tary cooperation of agency officials or private persons.” Congressional
Oversight Manual at 65 (emphasis added).
II.
The distinction between Congress’s constitutionally based oversight
authority and other congressional requests for information informs the
Executive Branch’s obligations and practices when responding to such
requests. When a committee, subcommittee, or chairman exercising
delegated oversight authority asks for information from the Executive
Branch, that request triggers the “implicit constitutional mandate to seek
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43 Op. O.L.C. __ (Feb. 13, 2019)
optimal accommodation . . . of the needs of the conflicting branches.”
United States v. Am. Tel. & Tel. (“AT&T ”), 567 F.2d 121, 127 (D.C. Cir.
1977); see also id. at 130–31 (describing the “[n]egotiation between the
two branches” as “a dynamic process affirmatively furthering the consti-
tutional scheme”); Assertion of Executive Privilege in Response to a
Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“The accommoda-
tion required . . . is an obligation of each branch to make a principled
effort to acknowledge, and if possible to meet, the legitimate needs of
the other branch.”). Such requests are enforceable by the issuance of a
subpoena and the potential for contempt-of-Congress proceedings. See
McGrain, 273 U.S. at 174; 2 U.S.C. §§ 192, 194; see also Senate Rule
XXVI(1); House Rule XI.2(m)(1).
Regardless of whether the chairman or committee has served a subpoe-
na, the Executive Branch will work to accommodate the committee’s
legitimate oversight needs, because a request for information is itself a
valid exercise of Congress’s oversight authority. The Executive Branch
need not, and rarely does, insist upon the service of a subpoena or other
compulsory process. Upon receipt of any request made by a committee,
the Executive Branch’s longstanding policy has been to engage in the
accommodation process by supplying the requested information “to the
fullest extent consistent with the constitutional and statutory obligations
of the Executive Branch.” Memorandum for the Heads of Executive
Departments and Agencies from Ronald Reagan, Re: Procedures Govern-
ing Responses to Congressional Requests for Information (Nov. 4, 1982).
In contrast with a committee request, a letter or inquiry from an indi-
vidual member or members of Congress is not made “pursuant to Con-
gress’s constitutional authority to conduct oversight and investigations.”
Congressional Oversight Manual at 56. As a result, while the Executive
Branch often will respond to and cooperate with such a request, the re-
quest differs from an oversight request and does not trigger the “implicit
constitutional mandate to seek optimal accommodation” that a request
from a committee or chairman exercising Congress’s delegated oversight
authority would trigger. AT&T, 567 F.2d at 127.
These distinctions between requests for information made by a chair-
man or committee and requests made by individual members of Congress
do not mean that individual members have no need for information from
Executive Branch officials, or that Executive Branch officials should
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Requests by Individual Members of Congress for Executive Branch Information
disregard their requests. “Senators” and “Representatives” compose
Congress as an institution, U.S. Const. art. I, §§ 1–3, and each member of
Congress “participates in the law-making process” and “has a voice and a
vote in that process.” Murphy v. Dep’t of the Army, 613 F.2d 1151, 1157
(D.C. Cir. 1979). Individual members, even those who are not chairmen
of committees that have been delegated the oversight authority of a House
of Congress, thus may “request . . . information from the executive agen-
cies” about Executive Branch programs or activities—whether for legisla-
tion, constituent service, committee activities, or other purposes arising
from members’ legislative “responsibilities” (such as Senators’ role in
providing advice and consent for presidential appointments). Id.The Executive Branch has historically exercised discretion in determin-
ing whether and how to respond to requests for information from individ-
ual members of Congress. Individual members often have legitimate
interests in seeking information from Executive Branch officials, and
providing this information can aid individual members in carrying out
their legislative responsibilities. When individual members are requesting
information in their official capacity on their own behalf, and not acting
on behalf of a body of Congress, an Executive Branch policy of providing
good-faith responses to their requests exhibits a proper respect for mem-
bers of a coordinate branch of the government. Departments and agencies,
therefore, appropriately give due weight and sympathetic consideration to
requests for information from individual members of Congress.*
* In response to a letter from Senator Grassley expressing concerns with Oversight by
Individual Members, the White House Director of Legislative Affairs issued a policy
statement regarding requests from individual members on July 20, 2017. That statement
provides, consistent with our conclusion here, that
[t]he Administration’s policy is to respect the rights of all individual Members, re-
gardless of party affiliation, to request information about Executive Branch policies
and programs. The Administration will use its best efforts to be as timely and re-
sponsive as possible in answering such requests consistent with the need to priori-
tize requests from congressional Committees, with applicable resource constraints,
and with any legitimate confidentiality or other institutional interest of the Execu-
tive Branch. Moreover, this policy will also apply to other matters on which indi-
vidual Members may have an interest, whether it be considering possible legisla-
tion, evaluating nominees for confirmation, or providing service to constituents.
Letter for Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary, from
Marc Short, Director of Legislative Affairs, The White House at 2 (July 20, 2017).
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43 Op. O.L.C. __ (Feb. 13, 2019)
In doing so, the Executive Branch may—and often does—provide in-
formation to individual members that is more than what is required under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. FOIA general-
ly requires only that a department or agency release certain records in its
custody. It does not require the department or agency to explain existing
policies or to create documents that do not already exist. See Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)
(FOIA “does not obligate agencies to create or retain documents; it only
obligates them to provide access to those which it in fact has created and
retained”). Yet the Executive Branch often responds to requests by mem-
bers of Congress with correspondence that answers substantive questions,
supplies a reasoned justification for existing policy, or explains why the
Executive Branch’s established confidentiality interests preclude it from
providing requested information. Such discretionary responses also fur-
nish the department or agency with an opportunity to correct mispercep-
tions or inaccurate factual statements that may be the basis for a request.
By the same token, departments and agencies often prioritize their re-
sponses to the members’ requests in a manner that differs from ordinary
FOIA requests submitted by members of the general public.
Although departments and agencies will generally respond to requests
from individual members of Congress, we recognize that they may decline
to provide information to individual members when doing so would, for
example, be overly burdensome; would inhibit the Executive’s responsi-
bility to protect information that is privileged, confidential, or otherwise
protected by law; or would interfere with the ability to respond in a timely
manner to requests for information submitted pursuant to Congress’s
oversight authority.
Our treatment of requests for information from individual members of
Congress is consistent with the D.C. Circuit’s decision in Murphy v.
Department of the Army. Murphy held that memoranda withheld from
disclosure in response to a FOIA request did not lose their statutorily
exempt character as a result of disclosure to an individual member of
Congress. In reaching this holding, the court pointed to then-5 U.S.C.
§ 552(c), which provided that FOIA “is not authority to withhold infor-
mation from Congress.” 613 F.2d at 1155. The court reasoned that, “to the
extent that Congress has reserved to itself in section 552(c) the right to
receive information not available to the general public, and actually does
receive such information pursuant to that section . . . , no waiver occurs of
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Requests by Individual Members of Congress for Executive Branch Information
the privileges and exemptions which are available to the executive branch
under the FOIA with respect to the public at large.” Id. at 1156. The court
found “no basis in the statute or in public policy for distinguishing for
FOIA purposes between a congressional committee and a single Member
acting in an official capacity,” on the grounds that “[a]ll Members have a
constitutionally recognized status entitling them to share in general con-
gressional powers and responsibilities, many of them requiring access to
executive information.” Id. at 1157.
Murphy’s holding—that, in light of section 552(c), disclosure of mate-
rials to an individual member of Congress does not waive the FOIA
exemptions that are available for requests from the public—does not
erode the legal distinction between requests for information made by a
committee (pursuant to Congress’s delegated oversight authority) and
requests made by individual members of Congress. Murphy involved the
statutory meaning of the word “Congress” “for FOIA [exemption] pur-
poses,” which the court read to include individual members of Congress.
Id.; see id. at 1158 (“What is at issue is the construction to be given to
[section 552(c)] which safeguards congressional access to executive
information notwithstanding the FOIA exemptions and the relationship of
that provision to the question of when confidentiality is waived or de-
stroyed by disclosure to a third party.”). To be sure, Murphy recognized
the significant role that individual members play in congressional pro-
cesses as providing support for reading “Congress” to include individual
members. But the court’s point was that FOIA was not designed to stymie
the flow of information between Executive Branch agencies and individu-
al members by subjecting those materials to a waiver of privilege. That
holding is entirely consistent with the view that there is a distinction
between a committee request, which is an exercise of Congress’s delegat-
ed oversight authority, and a request made by an individual member.
This understanding of Murphy is supported by an opinion by Judge
Wald concurring in part and dissenting in part in a D.C. Circuit decision
issued a few months after Murphy. See FTC v. Owens-Corning Fiberglas
Corp., 626 F.2d 966, 975–79 (1980). There, Judge Wald (who formerly
served as Assistant Attorney General for the Office of Legislative Affairs)
emphasized that only a “formal” congressional request, such as a letter or
subpoena from a committee, would qualify for an exception to a statutory
prohibition on the disclosure of trade-secret information. Two pre-Murphy
D.C. Circuit cases had held that the Federal Trade Commission’s disclo-
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43 Op. O.L.C. __ (Feb. 13, 2019)
sure of trade secret information to congressional committees was “not a
public disclosure forbidden by” the Federal Trade Commission Act (“FTC
Act”). Id. at 970 (majority opinion) (citing Exxon, 589 F.2d at 589, and
Ashland Oil, Inc. v. FTC, 548 F.2d 977, 979 (D.C. Cir. 1976)). Owens-
Corning also concerned disclosure in response to a “formal request” from
a committee, and the majority opinion relied on those cases to support its
conclusion that the disclosure at issue was permissible under the FTC Act.
See id. at 970, 974. However, a passing reference in the opinion to the
recently decided Murphy, see id. at 974 & n.16, elicited a strong dissent
from Judge Wald:
The majority opinion’s footnote 16, suggesting that a single Con-
gressman’s request for confidential information protected by [the
FTC Act], even though the request is unauthorized by any committee
or subcommittee of Congress, may stand on the same footing as a
duly authorized committee or subcommittee request, is especially
troubling. . . .
I cannot agree with the majority’s citation of [Murphy] to support
their position. . . .
Duly authorized Congressional requests were judicially recog-
nized as a narrow exception [under the FTC Act] in Exxon; there-
fore, it is doubly important to insure that these requests are author-
ized ones. The majority too casually dismisses Exxon in this regard.
No Member of Congress, acting on his own, has yet been judicially
declared to have access rights to subpoenaed trade secret material for
his own individually-defined legislative purposes, no matter how le-
gitimate his interest.
To suggest that Murphy may expand Exxon’s limited access [for
committees] to cover any Member acting individually is to seriously
dilute the protections of [the FTC Act], and even to undermine the
duly constituted authority and processes of Congress. The Legisla-
tive branch operates in the sensitive area of trade secret disclosure
with its coordinate branch, the Executive, through the structure and
delegated powers of Congressional committees and subcommittees.
Only if the Executive and the courts honor that structure will the
Legislature itself, as well as agencies, be able to assure subpoenaed
parties that their trade secret material is not subject to indiscriminate
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Requests by Individual Members of Congress for Executive Branch Information
disclosure to any or all of the 535 Members of Congress with diverse
political and legislative interests.
Id. at 978–79 (Wald, J., concurring in part and dissenting in part).
Our consideration of congressional access to Executive Branch privi-
leged information raises many of the concerns addressed by Judge Wald
in her consideration of congressional access to statutorily protected trade
secret information. Her rationale for distinguishing between requests from
committees and individual members applies as well in the context of
Congress’s constitutional oversight authority as it does in the context of
congressional requests under the FTC Act. Extending Murphy outside its
FOIA context to apply to individual-member requests for information
protected by executive privilege would intrude upon a comparably “sensi-
tive area” in which the Executive Branch has recognized that Congress
operates “through the structure and delegated powers of Congressional
committees and subcommittees.” Id. at 979. Giving the same access rights
to individual members would also “seriously dilute” the protections that
the accommodation process provides for the Executive Branch’s privi-
leged information and “undermine the duly constituted authority and
processes of Congress.” Id. at 978–79. To say that the Executive Branch
should provide respectful consideration to a request from a member of
Congress is not to say that each and every member may be viewed as
exercising the oversight responsibilities that the Constitution entrusts
collectively to each House of Congress.
III.
We recently confronted a similar issue in advising NARA about the
rights of individual Senators who were seeking records under the PRA
related to the nomination of then-Judge Kavanaugh to the Supreme Court.
In July and August 2018, we informally advised NARA that only a con-
gressional committee or its chairman has authority to request presidential
records under the PRA, unless the committee specifically delegates that
authority to another member.
The PRA restricts access to presidential records after they are acces-
sioned to NARA at the end of a President’s tenure in office. See 44 U.S.C.
§§ 2203(f ), 2204. The PRA includes various exceptions to its restrictions
on access, one of which provides that
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43 Op. O.L.C. __ (Feb. 13, 2019)
subject to any rights, defenses, or privileges which the United States
or any agency or person may invoke, Presidential records shall be
made available . . . to either House of Congress, or, to the extent of
matter within its jurisdiction, to any committee or subcommittee
thereof if such records contain information that is needed for the
conduct of its business and that is not otherwise available.
Id. § 2205(2)(C). The congressional exception provides that, under appro-
priate circumstances, NARA may provide access to nonpublic presidential
records in response to a request from either House of Congress or any
committee or subcommittee thereof.
Consistent with Application of Privacy Act, 25 Op. O.L.C. 289, we ad-
vised NARA that no individual member of a congressional committee
other than its chairman is authorized to speak for or otherwise represent
the committee for purposes of the PRA’s congressional exception, absent
an express delegation of authority from the committee to that member.
The relevant PRA language in section 2205(2)(C) is identical to the
Privacy Act language in 5 U.S.C. § 552a(b)(9), which we considered in
Application of Privacy Act. In that opinion, we concluded that this lan-
guage “prohibits the disclosure of Privacy Act-protected information to
[a] ranking minority member,” absent an express authorization from the
committee. 25 Op. O.L.C. at 289. We explained that “[e]xcept where the
Senate or House exercises its investigative and oversight authority direct-
ly, . . . each House of Congress exercises its investigative and oversight
authority through delegations of authority to its committees,” which in
turn often delegate that authority to chairmen. Id. In contrast, “[a]s a
general matter, ranking minority members are not authorized to make
committee requests, act as the official recipient of information for a
committee, or otherwise act on behalf of a committee.” Id.; see supra
pp. 4–5. Accordingly, “although the congressional-disclosure exception to
the Privacy Act disclosure prohibition is available for disclosures to either
House of Congress or to a committee of Congress,” we concluded that a
“disclosure of Privacy Act information solely to a ranking minority mem-
ber is not a disclosure to the committee” because “ranking minority mem-
bers generally do not act on behalf of congressional committees.” Appli-
cation of Privacy Act, 25 Op. O.L.C. at 289–90. “[T]he congressional-
disclosure exception is therefore unavailable.” Id.
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Requests by Individual Members of Congress for Executive Branch Information
So, too, under the PRA, no individual member of a committee other
than its chairman may act on behalf of a committee, absent a specific
delegation of authority to that effect, and thus disclosure to the individual
member does not qualify as disclosure to the committee under the statuto-
ry exception to restrictions on access. 44 U.S.C. § 2205(2)(C). Nothing in
the PRA suggests that Congress intended those terms to function differ-
ently in the PRA than in the Privacy Act. On the contrary, Congress used
the same language in both statutes, enacted only a few years apart, to
establish a similar congressional exception to prohibitions on disclosure.
These similarities are “strong indication[s] that the two statutes should be
interpreted pari passu.” Northcross v. Bd. of Educ., 412 U.S. 427, 428
(1973) (per curiam); see also Smith v. City of Jackson, 544 U.S. 228, 233
(2005) (plurality opinion) (“[W]hen Congress uses the same language in
two statutes having similar purposes, particularly when one is enacted
shortly after the other, it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes.”).
This interpretation of section 2205(2)(C) is consistent with NARA’s
longstanding administration of the statute. See Application of Privacy Act,
25 Op. O.L.C. at 290 (noting that the conclusion that the Privacy Act
prohibits disclosure to ranking minority members “follows the longstand-
ing Executive Branch practice on this question”). NARA informed us that
it has always understood the PRA to give authority to request records only
to the chairman of a committee or the committee itself, and that NARA
has relied on Application of Privacy Act in concluding that ranking minor-
ity members could not make requests under section 2205(2)(C). For
example, NARA declined to process requests from the Ranking Members
of the Senate Judiciary Committee in connection with the nomination of
Eric Holder as Attorney General and again with respect to the nomination
of Elena Kagan to the Supreme Court. NARA’s position with respect to
the Kavanaugh nomination therefore was consistent with prior Executive
Branch practice regarding section 2205(2)(C).
IV.
In reviewing requests from Congress, the Executive Branch’s long-
standing policy has been to engage in the established process for working
to accommodate congressional requests for information only when those
requests come from a committee, subcommittee, or chairman acting pur-
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43 Op. O.L.C. __ (Feb. 13, 2019)
suant to oversight authority delegated from a House of Congress. Depart-
ments and agencies, however, may appropriately give due weight and
sympathetic consideration to requests for information from individual
members of Congress not delegated such authority.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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