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1 1 (June 24, 2024)

handle is hein.crs/govephn0001 and id is 1 raw text is: Congressional_______ R a esearch Service D.C. Circuit Limits FOIA's Consultant Corollary for Members and Staff June 24, 2024 Members of Congress and the executive branch frequently engage in discussions about pending legislative proposals. The frankness of those conversations may depend on the likelihood that the content of those communications remains secret. The Freedom of Information Act (FOIA) does not provide public access to legislative branch records. Evidence of the substance of conversations between Members and executive branch officials, however, may sometimes be subject to public disclosure thorough a FOIA request made to executive branch agencies. Congressional information held by an executive branch agency can be shielded from public disclosure under at least two doctrines: the congressional records exception to FOIA and the consultant corollary to the law's deliberative process exemption. The consultant corollary permits an agency to withhold certain information subject to FOIA that the agency receives from a third-party consultant, including (until recently) Members or their staff in some circumstances. The consultant corollary, however, may no longer provide the same protection it once did to communications between Congress and the executive branch. In a May 2024 opinion issued by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit), American Oversight v. US Department ofHealth and Human Services, the court appears to have greatly narrowed the consultant corollary such that communications between Members and their staff with the executive branch may rarely, if ever, qualify for the exception. Narrowing the consultant corollary may expose more communications between Congress and the executive branch to disclosure through FOIA and may lead more Members and their staff to take additional precautions to shield their communications from disclosure. This sidebar concludes with considerations for Congress in light of these new developments. FOIA and the Consultant Corollary FOIA confers on the public a right to access federal agency information. Enacted in 1966, FOIA generally allows any person-individual or corporate, U.S. citizen or not-to request and obtain, without explanation or justification, a large swath of records and information held by the federal government. Seeking to balance transparency with the government's legitimate interests in keeping some records out of the public view, Congress included in FOIA nine exemptions. The exemptions function as justifications or Congressional Research Service https://crsreports.congress.gov LSB11198 CRS Legal Sidebar Prepared for Members and Committees of Congress

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