As FOIA Advisor reported yesterday, Adam Schiff, a prominent Democrat in the U.S. House of Representatives, has introduced a bill that would make the judicial branch subject to the Freedom of Information Act (“FOIA”). That legislation is called the “Judicial FOIA Expansion Act.” A copy of the congressman’s press release is available here. FOIA Advisor’s “legal eagles,” Ryan Mulvey and Allan Blutstein, offer their thoughts on Rep. Schiff’s proposal.

RM: I am not opposed to expanding the FOIA to cover parts of the legislative and judicial branches. In a 2019 article published in The Journal of Civic Information, my co-author and I suggested that Congress should consider making legislative branch agencies subject to the FOIA. (That scholarship was cited in the 2020-2022 FOIA Advisory Committee Final Report to support just such a recommendation.) The same logic cuts in favor of extending the FOIA to judicial support offices and agencies, such as the Administrative Office of the Courts. The Schiff bill, however, goes far beyond any modest attempt to make administrative agencies of the judicial branch subject to the FOIA. It would make the courts themselves, and the judges who fill their benches, “agencies.” I think that reform is ill-considered.

I’ll highlight what I think are the two biggest problems with this legislation.

First, the re-definition of an “agency” is awkwardly accomplished with a series of changes to Section 551. The bill would create a carve-out to the current exclusion of “courts” from the general APA definition of “agency,” as well as add a lengthy definition for “court of the United States.” This latter definition would perplexingly include non-court entities like the Sentencing Commission and Federal defenders. That’s a bizarre approach. The more natural change would be to modify the FOIA’s definition of “agency” at Section 552(f)(1), which is already different than Section 551(1), and then call it a day.

More troublingly, the proposed re-definition of “court of the United States” is extraordinarily expansive. It would include basically the entire federal judiciary, save the Foreign Intelligence Surveillance Court. It would even include “security or protective service[s]” that contract with the judicial branch, without regard for whether they are non-governmental vendors. On this last point, it may be possible to quibble with what it means to “use[] funds appropriated,” but allowing for such ambiguity is dangerous. It seems unnecessary to make security companies subject to the FOIA tout court, as opposed to ensuring agency control (through a governmental entity) over records concerning the performance of their contracted duties.

Second, the scope of this bill has been perhaps misleadingly described by Rep. Schiff on Twitter/X and in his office’s press release. We’re not just talking about access to “administrative records,” or materials under the control of the “administrative apparatus of the judicial branch.” Plainly read, this bill would make courts themselves (i.e., judges) into “agencies.” To be sure, there would be new, special exemptions, including for “[a]ny matter related to an ongoing case.” But that sort of provision presents its own problems. What happens when a case is no longer “ongoing”? The FOIA’s current exemptions would still be available, but do in-chambers deliberations qualify for withholding under Exemption 5? Under the deliberative-process privilege? Under what one article has called the “obscure doctrine” of judicial privilege? There is a lot of unknown territory here that hasn’t been well thought out. And don’t get me started on the proposed exemption for “[a]ny information not in the possession of the courts.” We’ve long moved past physical possession as determinative for legal control in FOIA jurisprudence. This kind of language has the potential to muck things up.

Let’s be honest. If this bill were ever to pass—and the chances are admittedly quite low—judges would be inundated with requests for their email and text messages. At a purely practical level, and setting other legal objections (even constitutional), if legislators aren’t willing to make themselves, let alone the President, subject to the kind of public scrutiny those comes with the FOIA, why should federal judges be treated differently?

AB: “Ill-considered” is a politer term than I would used to describe the Judicial FOIA Expansion Act, so it is probably for the best that you led off. This bill “cannot be taken seriously”—to borrow a phrase from Justice Scalia—for all of the reasons you mentioned, Ryan, particularly access to judicial communications. And if that possibility wasn’t apparent from the bill’s text or Congressman Schiff’s press release, Newsweek cleared things up with this headline: Supreme Court's Private Emails Could Be Made Public Under New Bill.

Since you mentioned the federal FOIA Advisory Committee, I’ll add that a champion of this bill, Michael Lissner of the Free Law Project, argued for greater judicial transparency in a March 3, 2021 presentation to the Committee (on which I served at the time). To his credit, Lissner recognized that a request model would raise problems, such as requests for voluminous records, establishing a workable appeal process, and the prospect of judges souring on FOIA oversight. Congressman Schiff’s bill does not overcome any of those problems. Notably, Lissner did not in 2021 suggest that communications to and from judicial chambers should be available, and I doubt many Committee members would have been receptive to that idea. Indeed, Lissner’s presentation engendered only one direct reaction, specifically from Villanova University professor Tuan Samahon, who recommended enacting a separate, affirmative disclose statute for certain judicial records instead of FOIA’s request model. Professor Samahon was right.