Can a letter, or another form of communication, sent by Party A and received by Party B, remain the exclusive property of Party A, even when in the physical possession of Party B?  According to the copy of a letter released by BuzzFeed this weekend, Jeb Hensarling, (R-TX), Chairman of the House Financial Services Committee (FSC), is asserting such control for his committee.

The letter, sent on April 3, 2017 to Treasury Secretary Steven Mnuchin, and signed only by Hensarling says that communications between FSC and Treasury "constitute congressional records, not 'agency records' for the purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency."

The Freedom of Information act - or FOIA - was enacted in 1966 and applies to all executive branch agencies, however Congress expressly excluded itself from its provisions.  The act covers agency disclosures that must be published in The Federal Register, and sets up a mechanism through which the public can request specific information from an agency through a FOIA request.  This process requires substantial documentation from the requestor and there are offices at each agency dedicated to vetting and handling the requests.  

The law and its numerous amendments does not mandate the release of classified information or anything related to personal information about individuals, trade secrets, financial information, or agency personnel records.  There are nine specific exclusions listed in Title 5 of the United States Code, Section 552.  Only two appear even remotely related to the privilege asserted by Hensarling:

#5 inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency; and

#8 contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Hensarling's letter states that the committee's members and staff often communicate with the Treasury Secretary and his agency, and that the communications are often of a "sensitive and confidential nature,"  In order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, "The Committee intends to retain control of all such communications and will be entrusting them to your agency only for use in handling those matters."  Hensarling goes on to say that any communications which are sent from Treasury to FSC "are also records of the Committee and remain subject to the Committee's control."

Hensarling requests that Treasury respond to his letter no later than May 1 "to confirm that your Agency will decline to produce any congressional records in response to a request under the Freedom of Information Act or any other provision of law or agreement."

BuzzFeed's investigative reporter Mary Ann Georgantopoulos released the letter.  Her report quoted Katie Townsend, litigation director for the Reporters Committee for Freedom of Press who said she has never seen a letter like this before and found it "deeply troubling."  She explained that FOIA requires government agencies to quote their own records but there is no definition as to what constitutes an agency record.  FSC is trying to create its own definition which excludes its own communications, she explains, "But they're agency records, whether they admit to it or not.  You can call a pig a dog, but it's still a pig."