Memorandum

October 31, 2007

TO:

Hon. Carolyn B. Maloney Attention: Elizabeth Down

FROM:

T.J. Halstead Legislative Attorney American Law Division

SUBJECT:

Substantiality of Agency Objections in Refusing to Answer Congressional Inquiries

Pursuant to your request, this memorandum evaluates the substantiality of a potential assertion of privilege made before the House Oversight and Government Reform Committee’s Information Policy, Census, and National Archives Subcommittee (hereinafter referred to as “Subcommittee”). On October 16, 2007, the Director of the Census Bureau, Louis Kincannon, appeared before the Subcommittee as a witness at a hearing on “Critical Budget Issues Affecting the 2010 Census.” A matter of key concern at the hearing centered on the potential impairment of the Census Bureau’s activities in preparation for the 2010 census, resulting from a lack of funding in the continuing resolution (CR) under which the Bureau is currently operating. The issue was framed by Representative Maloney as follows: The government, as it has done in recent years, is currently working under a continuing resolution for the beginning of fiscal year 2008. This year, the CR is set at fiscal year 2007 levels. Many agencies can make due with funding at the previous year’s level for a few weeks, but two years away from the 2010 Census, that is absolutely impossible for the Census Bureau. They need to have their funding to get the job done. The Census Bureau funding for fiscal year 2008 was slated to increase by 40 percent from last year, according to the President’s budget request, in order to fund the preparations for the Decennial Census. This is not a new problem. In 1998 and 1999, during the ramp-up to the 2000 Census, the government was funded by CR at the beginning of those fiscal years. Those CRs made provisions for the increased expenses of ramping up to the census. While there may have been other issues that affected the 2000 Census, funding was not one of them. The difference with this census seems to be that the administration did not, for some unexplained reason, ask the Congress to include routine language to exempt the Census Bureau from the flat-line funding, because of the importance of the census.

Congressional Research Service Washington, D.C. 20540-7000

CRS-2 In 1998 and 1999, a Republican Congress included these exceptions for the increased ramp-up of cost of those years at the request of a Democratic administration, even though the census in those years was itself a very contentious issue. This makes the question, why the administration did not ask for an exception, even more puzzling. Was it just incompetence?1

Stating that the Administration had announced that it wanted a “clean” CR, with “no anomalies or add-ons on top of it,” Representative Maloney noted that the Office of Management and Budget (OMB) nonetheless requested approximately one dozen such anomalies for various activities.2 Representative Maloney then asked Director Kincannon if he had asked OMB “for anomaly language” that would have given the Census Bureau additional funding under the CR to allow it to adequately prepare for the upcoming census.3 In response, Mr. Kincannon stated that “discussions in the ongoing process of the budget are internal to the administration.” Upon further questioning on this point, Director Kincannon stated that he would “not answer that question,” and that answering questions pertaining to “individual budget discussions back and forth between the different levels of review in the administration” is not a “practice that is followed in the executive branch of government.” Representative Maloney then inquired as to whether OMB ever rejected the Bureau’s request for funding, prompting Director Kincannon to state that he considered the matter to be an “internal administration discussion.”4 A similar line of questioning was pursued by Representative Hodes, who asked Director Kincannon “are you claiming some sort of privilege in your refusal to answer our questions about the discussions you’ve had with the Office of Management and Budget?”5 Director Kincannon replied, stating “if we have to draw a fine line of whether I am claiming some sort of privilege, I guess I would have to ask for counsel there. But it’s a long-established practice, long-disputed by the Congress on a bipartisan basis, that these discussions about budget remain internal to the administration and we, through a set of deliberation, produce a proposal that is the President’s budget, and we defend that budget.”6 Representative Hodes responded by stating “I know of no privilege which would allow you not to testify, because you are under oath, about the discussions we’ve asked so that we can get the information we need from OMB. So if there’s somebody here for you to seek the counsel of, I’d ask leave from the chairman to give the witness a chance to seek that counsel.”7 At this point, however, the Subcommittee shifted its focus of inquiry to measures that were being undertaken by the Census Bureau to ameliorate the effects of the funding shortfall, and Director Kincannon did not assert any formal claim of privilege. Apart from generalized statements at the hearing indicating that he was unwilling to discuss matters that were “internal to the administration” and developed through

1

Hearing on “Critical Budget Issues Affecting the 2010 Census,” Unofficial Transcript, Oct. 16, 2007, at 4. 2

Id. at 13.

3

Id. at 13.

4

Id. at 14.

5

Id. at 17.

6

Id. at 17-18.

7

Id. at 18.

CRS-3 “deliberation,” neither Director Kincannon nor the Census Bureau have explained in any detail the legal reasoning behind the refusal to answer the questions posed to him, making it difficult to ascertain the precise nature of the putative claim of privilege at issue. Nonetheless, there is no indication that Director Kincannon was relying on the constitutionally-based doctrine of executive privilege, which protects the confidentiality of the communications between the President and his advisers.8 Instead, the aforementioned justifications given by Mr. Kincannon in his refusal to answer the Subcommittee’s questions appear to contemplate an invocation of the common law deliberative process privilege. Assertions of the deliberative process privilege rest on the argument that congressional demands for information as to what occurred during agency policy development would unduly interfere, and perhaps “chill,” the frank and open internal communications necessary to ensure the quality and integrity of the decisional process. Assertions of the privilege may also be based on the proposition that it protects against the premature disclosure of proposed policies before they are fully considered or actually adopted by the agency, and that it prevents the public from confusing matters merely considered or discussed during the deliberative process with those on which the decision was based. However, as with claims of attorney-client privilege and work product immunity, congressional practice has been to treat their acceptance as discretionary with the committee. The Court of Appeals for the District of Columbia Circuit has emphasized that the deliberative process privilege accorded to agencies is a common law privilege that is easily overcome by a showing of need by an investigatory body. Moreover, other court rulings and congressional practice have recognized the overriding necessity of an effective legislative oversight process. In In re sealed Case (Espy), the D.C. Circuit addressed White House claims of executive and deliberate process privileges for documents subpoenaed by an independent counsel.9 At the outset of the court’s unanimous ruling it carefully distinguished between the “presidential communications privilege” and the “deliberative process privilege.” The court stated that both privileges are designed to protect the confidentiality of executive branch decisionmaking, but specified that the deliberative process privilege applies to executive branch officials generally, is a common law privilege which requires a lower threshold of need to be overcome, and “disappears” altogether when there is any reason to believe government misconduct has occurred.10 The court's recognition of the deliberative process privilege as a common law privilege which, when claimed by executive department and agency officials, is easily overcome, and which “disappears” upon the reasonable belief by an investigating body that government misconduct has occurred, could serve to severely limit the common law claims of agencies against congressional investigative demands. A demonstration of need of a jurisdictional committee would appear to be sufficient, and a plausible showing of fraud, waste, abuse or maladministration would be conclusive. Even before the decision in Espy, courts and committees consistently countered such claims of agencies as attempts to establish a species of agency privilege designed to thwart

8

United States v. Nixon, 418 U.S. 683 (1974).

9

121 F.3d 729 (D.C. Cir. 1997).

10

121 F.3d at 745, 746; see also id. at 737-738(“[W]here there is reason to believe the documents sought may shed light on government misconduct, the [deliberative process] privilege is routinely denied on the grounds that shielding internal government deliberations in this context does not serve ‘the public interest in honest, effective government’”).

CRS-4 congressional oversight efforts.11 Thus it has been pointed out that the claim that such internal communications need to be “frank” and “open” does not lend it any special support, and that coupling that characterization with the notion that those communications were part of a “deliberative process” will not add any weight to the argument. In effect, such arguments have been seen as attempting to justify a withholding from Congress on the same grounds that an agency would use to withhold such documents from a citizen requester under Exemption 5 of the Freedom of Information Act (FOIA).12 Such a line of argument is likely to be found to be without substantial basis. As has been indicated above, Congress has vastly greater powers of investigation than that of citizen FOIA requesters. Moreover, in the FOIA itself, Congress carefully provided that the exemption section "is not authority to withhold information from Congress.”13 In Murphy v. Department of the Army, the D.C. Circuit explained that FOIA exemptions were no basis for withholding from Congress because of: [T]he obvious purpose of the Congress to carve out for itself a special right of access to privileged information not shared by others . . . . Congress, whether as a body, through committees, or otherwise, must have the widest possible access to executive branch information if it is to perform its manifold responsibilities effectively. If one consequence of the facilitation of such access is that some information will be disclosed to congressional authorities but not to private persons, that is but an incidental consequence of the need for informed and effective lawmakers.14

Further, it may be contended that the ability of an agency to assert the need for candor to ensure the efficacy of internal deliberations as a means of avoiding information demands would severely undermine the oversight process. If that were sufficient, an agency would be encouraged to disclose only information that supports its positions and to withhold information that would reveal any flaws, limitations, unwanted implications, or other embarrassments. Oversight would cease to become an investigative exercise of gathering comprehensive information and would instead devolve into a forum wherein agencies would be empowered to decide what information to present in a controlled “show and tell” performance. Moreover, every federal official, including attorneys, could assert the imperative of timidity – that congressional oversight, by holding up to scrutiny the advice he gives, will frighten him away from giving frank opinions, or discourage others from asking him for them. This argument, not surprisingly, has failed over the years to persuade legislative bodies to cease oversight. Indeed, when the Supreme Court discussed the "secret law" doctrine in NLRB v. Sears, Roebuck & Co.15 it addressed why federal officials – including those giving legal opinions – need not hide behind such fears: The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged

11

For an overview of several such episodes, See Morton Rosenberg, “Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and Practice,” Congressional Research Service, Rep. No. RL34197 (2007). 12

5 U.S.C. § 552(b)(5)(1994).

13

5 U.S.C. § 552(d).

14

613 F. 2d 1151, 1155-56 (D.C. Cir. 1979).

15

421 U.S. 132 (1975).

CRS-5 rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports . . .[disclosure].16

These principles would appear to be fully applicable to the current scenario. While Director Kincannon’s statement that there is a “long-established practice” of not discussing internal administration discussions regarding budgetary matters may well be correct, there appears to be no legal or judicial support for the proposition that such a traditional practice may trump the oversight prerogatives of Congress. Furthermore, there is little similar support for the notion that special considerations apply in the budgetary context. Prior to the establishment of the President’s authority over the executive branch budget process in 1921,17 each agency submitted its annual budget request directly to Congress,18 belying any argument that Congress is somehow precluded from exercising its constitutional oversight authority in this context. Ultimately, past congressional history and practice, as well as pertinent judicial precedent, appear to support the Subcommittee’s questioning of Director Kincannon. In the absence of a legitimate claim of executive privilege, the oversight needs of the Subcommittee would likely be deemed sufficient to overcome a claim of deliberative process privilege.

16

Id. at 161 (emphasis in original).

17

Ch. 18, 42 Stat. 20 (1921).

18

See Morton Rosenberg, “Congress’s Power Over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive,” 57 Geo. Wash. L. Rev. 627, 674 (1989).