Confidentiality status of CRS Reports

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The confidentiality status of CRS Reports has been a public policy dispute.

Congress's attitudes towards CRS confidentiality[edit]

CRS annual appropriations legislation[edit]

According to the CRS, Congress has historically reserved to itself control over the dissemination of CRS products to the public on the principle that CRS, as an extension of congressional staff, works exclusively for the Congress.[1]

A provision has been included in CRS annual appropriations acts since FY1952 requiring approval by one of its two congressional oversight committees for acts of "publication" by the CRS.[2]

The limitation began in the House as a flat prohibition on publications by the Library of Congress using funds appropriated to the Legislative Reference Service (now CRS).

In 1954 a provision was added providing for exception only with the approval of our oversight committees.

The standard appropriations language text which appears annually in the law appropriating funds for the Legislative Branch today reads as follows:[3]

Mulhollan notes that the term "publication" in this context has generally been construed to encompass all manner of communicating information to the public, based on the legislative history of the provision (with its concern over diverting CRS (then LRS) resources to providing materials to the public) and subsequent Joint Committee on the Library guidance.[2]

The prohibition appears each year in the annual appropriations act for the Legislative Branch and is intended to preserve the role of CRS as a confidential resource. The appropriations acts, supplemented by other congressional guidance that CRS has received over the years, and supported by judicial opinions, leave to the Members and committees the decision whether and how to place individual CRS products in the public domain.[2]

The CRS notes that Congress has never authorized the wholesale public dissemination of CRS analytical products such as Reports or Issue Briefs (and has seldom authorized publication of other products), whether by CRS or the Congress, but rather has preferred to rely on congressional release of individual products on a case-by-case basis.[4]

1978 proposal by the National Conference of State Legislatures[edit]

In 1978, the National Conference of State Legislatures (NCSL) issued a proposal under which CRS would have received access to the files of State research materials abstracted by the NCSL, and would have had the opportunity to order copies of desired items for use in answering congressional inquiries. In return, CRS would have provided the NCSL with periodic listings of CRS Reports (called "multiliths" at that time) and with only one copy of those CRS Reports which the NCSL requested. Under this proposal the NCSL also would have gained access to certain files from the Library of Congress's SCORPIO system, including CRS Issue Briefs.

On September 27, 1978, the Joint Committee on the Library held a hearing to consider the proposal. At the hearing, the Committee concluded that any transmission of CRS material contained in SCORPIO to noncongressional users via computer terminal would constitute a "publication" and thus, under the terms of the language contained in CRS's annual appropriations legislation (noted above) would require the prior approval of either the Committee on House Administration or the Senate Committee on Rules and Administration. Moreover, members of the Joint Committee expressed serious reservations about any activity that might divert CRS resources and priorities from its statutory responsibilities to Congress. Finally, members of the Committee expressed the view that it was appropriate for Members of Congress, rather than CRS, to determine whether and to what extent various CRS products should be publicly disseminated. As a result, no action was taken to implement the proposed CRS-NCSL exchange.

1980 communication of the Joint Committee on the Library[edit]

In a communication dated March 21, 1980, the Joint Committee on the Library released a policy statement regarding the publication of CRS written products:[4]

Reflecting on this passage in 2007, CRS Director David Mulhollan wrote, "It is noteworthy that in this instance the Joint Committee referred to the restriction on "circulation" of CRS materials, making it clear that the term "publication" in the statute is interpreted broadly."[2]

Senate Resolution 396, 96th Cong., 2d Sess. 1980[edit]

A March 27, 1980 Senate Resolution (S. Res. 396, 96th Cong., 2d Sess. 1980), occasioned by a subpoena issued in an administrative proceeding for CRS material, reads:[5][6]

This Senate Resolution directed the Senate Legal Counsel to represent the Senate and CRS in respect to a Federal Trade Commission administrative law judge’s “sweeping subpoena [on behalf of oil companies involved in a FTC proceeding] to the Congressional Research Service for documents which discuss the oil industry and governmental policy in relation to it.” Id. The Resolution stated that “the communications between the Congressional Research Service and the members and committees of the Congress are an integral part of the legislative process and privileged under the Speech or Debate Clause of the Constitution.”

Senate Majority Leader Byrd, in introducing the Resolution, noted CRS’ role in advising members and committees on legislative issues and that CRS “thereby provides a service to the Members and committees of Congress which is equivalent to that performed by the staffs of Members and committees."[6]

1990 - Senate authorizes its Legal Counsel to challenge a subpoena of CRS[edit]

A decade later, Senate Legal Counsel was authorized by resolution to challenge a subpoena that was issued in a case in the U.S. Tax Court to an American Law Division attorney. The subpoena sought both testimony and documents relating to a memorandum the attorney had prepared for a Senator on certain tax questions that had been posed by a constituent. In introducing the resolution, the Senate Majority Leader reiterated the importance of "protecting the work done by CRS in preparing communications to the Members and committees of Congress":[7]

Congressional efforts to make reports public[edit]

There have been numerous attempts to pass legislation requiring the CRS to make its products available on a public web site, including the introduction of bills in 1998, 1999, 2001, and 2003.[8] All have so far failed to pass. Publicly stated reasons for this include legal liability for CRS findings, copyright issues, and increased CRS workload. However, it is far more likely that the members of Congress who commission CRS reports wish to maintain control over the distribution of any potentially sensitive conclusions.[8]

In 1998, then-Chairman of the Rules Committee Senator John Warner (R-VA) and Ranking Member Wendell Ford (D-KY) disseminated CRS products through the Committee's website, taking the position that it is appropriate "for Members and Committees to use their web sites to further disseminate CRS products," and, in fact, encouraging them to do so.[9] Senator Tom Daschle (D-SD) was the first to respond to this suggestion, putting almost 300 CRS products on his website. The CRS products are no longer accessible on this website.

Legislation that would make CRS Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports available over the Internet has been introduced every Congress by Senator John McCain (R-AZ) or Senator Patrick Leahy (D-VT) since 1998. This initiative enjoys support from the leadership of both parties in the Senate. (The legislation proposed in the 107th Congress, Senate Resolution 21, was co-sponsored by Senators Tom Harkin (D-IA), Patrick Leahy (D-VT), Joseph Lieberman (D-CT), and Trent Lott (R-MS).) Bills have also been introduced in the past in the House by Representative Shays and Representative Jim DeMint (R-SC), and at least two Representatives - Representative Shays and Representative Mark Green (R-WI) - have placed many CRS products on their own websites in an attempt to make some CRS products available to the public.[10]

“Reports are produced by the Congressional Research Service staff for the education of members of Congress,” Kyle Anderson, a spokesman for the House Administration Committee, which has jurisdiction over the issue in the House, wrote in an e-mail message to the New York Times. “Just as other memos produced by staffers for members of Congress aren’t made public, these are not.”[11]

Mr. Schwartz made it clear, however, that the organization was seeking the public release of only reports the research service produces, not the memorandums it also writes for members of Congress.[11]

A spokesman for Senator Charles E. Schumer, the New York Democrat and chairman of the Senate Rules Committee as of 1999, said Mr. Schumer was “aware of the arguments for making these reports public” and was reviewing the current policy.[11]

Senator Joseph I. Lieberman, independent of Connecticut, who makes several of the reports available on his Web site, has on several occasions proposed legislation to make the reports public. “For too long, C.R.S. reports have been available to the public only on a haphazard basis,” Mr. Lieberman said in an e-mail message to the New York Times. “These reports inform members of Congress and their staffs on a wide range of issues. The American people, who pay for these reports, should be able to learn from this same expert analysis.”[11]

CRS positions and public responses[edit]

1999 CRS Report: CRS's view on "Issues Associated With The Wholesale Release Of CRS Products To The Public"[edit]

In its 1999 report, "Congressional Policy Concerning the Distribution of CRS Written Products to the Public," the CRS described what it viewed as both "institutional issues" and "legal issues" regarding the public distribution of CRS products.[1]

Institutional issues
1. Limited resources. CRS noted that any services provided to non-congressional entities would necessarily come "only at the expense of direct support of the Congress." While acknowledging that "the direct and indirect costs associated with disseminating Reports and Issue Briefs are difficult to estimate with precision," CRS nevertheless held that "it is clear that significant resources would have to be diverted from congressional services."
2. Distraction from congressional audience. The report expressed concern that if future reports were made public, CRS analysts might be distracted from their duties to craft their products for the Congressional audience; "CRS analysts might become more conscious of the need to address views, methods, disciplines, and expectations of noncongressional professional peers, with the result that CRS written work could shift away, or appear to shift away, from its current emphasis on the congressional audience;" conversely, Members might react by increasing the number of confidential requests that they place – thus requiring CRS to write more tailored responses, and
3. Interest group pressure. The report expressed concern that "Enhanced internal mechanisms would have to be developed to ensure that communications with interested parties did not deflect CRS analysts from producing products that are free from advocacy and bias, resulting in a further diversion of resources from direct service to Congress."[1]
4. A precedent undermining confidentiality of Congressional resources generally. The report expressed concern that "[t]he release by Congress of CRS Reports and Issue Briefs may set a precedent leading to greater pressure to have studies prepared by congressional staff for Members’ exclusive use (e.g., committee staff studies distributed to entire committee membership) to be disseminated directly to the general public. It might be difficult for Congress to articulate a convincing rationale for granting public access to the Service’s work but denying equivalent access to materials prepared by other shared staff (e.g., committee staff) that are distributed to more than one Member. Thus, a policy of providing Members’ constituents with the same materials that Members themselves draw upon to make legislative decisions could have serious implications for the functions of staff and their relationship with Members."[1]
Legal issues
1. More litigation, less protection from speech or debate clause immunity. The report expressed concern that, if the CRS transitioned from "the current practice of limited distribution" to "widespread electronic dissemination to the general public", this could increase the risk of "a variety of administrative and judicial proceedings" for "[t]hose engaged in public distribution of CRS products, as well as CRS analysts who prepare the products," in which "litigants might seek, for purposes of discovery, the files of CRS analysts or ... damages or injunctive relief barring further distribution of a particular report or issue brief [or] damages in suits alleging copyright infringement." Furthermore, the defendants in these cases might lose their immunity under the Speech and Debate Clause of the Constitution. Since its 1972 ruling in United States v. Brewster, the Supreme Court has limited that immunity to "legislative acts,"[12] which were distinguished from a range of activity described as "entirely legitimate" but unprotected by the speech or debate clause because it was considered to be "political in nature."[13] "The dissemination (by Members and/or their aides, by CRS, or by a congressionally designated entity) to the general public of CRS products would not be viewed as a legislative act but would be considered to be an exercise of Congress' representational function, for which speech or debate immunity is not available.[14]" To support this argument, the report noted that in several cases relevant to the applicability of speech or debate immunity to the public distribution of CRS products, the Court has relied on the dichotomy established in Brewster to hold that congressional activities intended to inform the general public are outside the scope of the speech or debate clause. Notably, in Doe v. McMillan, the Court found that the clause might not protect the Public Printer and the Superintendent of Documents from liability for distribution of a committee report, which contained material alleged to have invaded individual privacy rights, beyond "the legitimate legislative needs of Congress...."[1][15]
2. Related litigation burdens. The report expressed concern that "widespread distribution of CRS products" would cause "an increase in public awareness of the research and analysis prepared by the Service for Congress," which "could escalate the efforts of litigants to obtain, for purposes of discovery, CRS analysts' files," including "information and data used to develop CRS Reports and Issue Briefs" as well as "related material from the Service's files."
  • Even where Speech or Debate Immunity provides a valid defense in such discovery proceedings, the report notes that
  • In addition, the report noted two reasons that "it is uncertain whether Congress would prevail in litigating such matters." First, it is possible that a court would not precisely differentiate among the information in the superficially similar types of documents in a CRS subject file and would grant litigants access not only to publicly available information but also to confidential communications between the Service and congressional offices. Second, in previous instances in which CRS has been involved in litigation or agency proceedings, the judicial or agency decision has emphasized that CRS performs a legislative function and that its staff functions as an adjunct of Member and committee staff.[16] With wider dissemination of CRS products to the general public, this longstanding perception of the Service and the nature of its communications to the Congress could be altered, eventually putting at risk speech or debate protection for the Service’s confidential work. In other words, extensive involvement by CRS in the direct public information function could lead courts and administrative agencies to reconsider their perception of CRS as playing a significant and unique support role in the legislative process, and thus some day might hamper a claim of immunity even in an instance in which CRS was fulfilling its legislative function.[17]
3. Risk of copyright infringement. The report noted that CRS reports "in certain instances" may contain "appropriately credited" material from copyrighted sources. In these instances, the CRS either: obtains permission for the use; (generally based on legislative use and the expectation that dissemination is limited to Members of Congress); considers its information-gathering function protected by the speech or debate clause; or believes that the use falls under the "fair use" doctrine of the Copyright Act as applied in the context of the legislative process. Although "[t]he copyright statute does not expressly include congressional use of copyrighted works as a fair use," "both the House and Senate Reports on the Copyright Act of 1976 include the "reproduction of a work in legislative or judicial proceedings or reports" among examples of fair use."[18] The legislative history also contains an observation that publication of copyrighted material in Congressional documents would constitute fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern..."[19] Thus, in an infringement action, a court might regard the publication of copyrighted material in a Congressional document for legitimate legislative purposes as a "fair use." If, however, the use is outside of such legislative purposes, it is possible that a traditional fair use analysis might result in liability for copyright infringement. Wider dissemination outside the confines of Congress would further complicate the "fair use" question.

1997 CRS memorandum[edit]

In a December 1997 memorandum, the CRS summarized the "Legal Issues Presented by Proposals for the General Release of CRS Products to the Public":[23]

  • Speech and debate immunity: Reducing "substantial role in the legislative process". Such proposals might "cause the judiciary and administrative agencies to reassess their perception of CRS as playing a substantial role in the legislative process, and thereby might endanger a claim of [Speech and Debate Clause] immunity even in an instance in which CRS was fulfilling its legislative mission (e.g., by preparing a confidential memorandum for a Member on a pending bill.)"[24]
  • Libel, slander, and defamation. CRS also believes that slander or libel actions might occur more frequently if CRS products were put on the Internet, because more people would read CRS products and know of their existence.
  • Confidentiality of CRS files. CRS believes that broader dissemination of CRS products would likely inspire more litigants who wish to obtain, for purposes of discovery, the files of CRS analysts. This might, CRS argues, cause the public release of correspondence between Members of Congress and CRS.
  • Copyright infringement. CRS argues that it might be subject to claims of copyright infringement if CRS products were available on the Internet. CRS sometimes incorporates copyrighted work into its reports and products. (Elsewhere, the CRS notes that these inclusions are always "appropriately credited".)[1]

Responses to the 1997 CRS memorandum[edit]

Memorandum of Gary Ruskin[edit]

On January 5, 1998, Gary Ruskin, Director of the Congressional Accountability Project, wrote a memorandum which disputed each of the arguments in the 1997 CRS memorandum. He wrote:

With regards to "Speech and debate immunity," he wrote:

[25]

With regards to Libel, slander, and defamation, he wrote:

[25]

With regards to Confidentiality of CRS files, he wrote:

With regards to Copyright infringement, he wrote:

[T]his potential problem of copyright infringement, too, is easily solved. First, CRS could ask for permission to reproduce significant portions of copyrighted works, and explain that such materials will be put on the Internet. Second, the use of copyrighted materials within a legislative document probably constitutes a "fair use" within the meaning of the Copyright Act of 1976. The CRS analysis notes that both House and Senate committee reports of the Copyright Act mention as examples of fair use "reproduction of a work in legislative or judicial proceedings or reports." The legislative history of the Copyright Act indicates that copyrighted material in congressional documents would be fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern..." Congress may occasionally have to abridge or eliminate long passages which, in the extreme, may fall outside a "fair use" claim, before such materials are placed on the Internet.

Letter of Stanley M. Brand[edit]

On January 27, 1998, Stanley M. Brand, the former General Counsel to the House of Representatives, wrote a letter to Senator John McCain:

(See also his letter addressing a 2001 reintroduction of the same legislation.[26])

John McCain cited this letter on the Senate floor when he was proposing an amendment[27] to the Legislative Branch Appropriations Act 1999 that would direct the Director of the Congressional Research Service to post `CRS Reports to Congress' and `CRS Issue Briefs' on the Internet.[28] In this speech, he also noted:

February 2003 POGO Report[edit]

The report, "Congressional Research Service Products: Taxpayers Should Have Easy Access", pointedly begins with an excerpt from the Library of Congress mission statement:

[29]

The report included a letter of September 3, 1999, from James Billington, the Librarian of Congress, responding to a letter from Ari Schwartz of the Center for Democracy and Technology, urging him to "make available on the Internet the reports of the Congressional Research Service".[30]

The report addressed several of CRS's arguments.

1. Loss of Speech or Debate Clause Protections: Pogo argues that CRS's argument is undercut "by the fact that the GAO and the Congressional Budget Office (CBO) have retained these protections while making their reports accessible and readily available to the public." It adds that "[o]utside experts familiar with the issue agree that CRS's constitutional immunity would be protected if it made its products available to the public", noting the afermentioned letter from Stan Brand, the former General Counsel to the House of Representatives (and counsel for the Project On Government Oversight), which concluded that "... nothing in [the bill to make CRS products publicly available] will alter or modify applicability of the Speech or Debate Clause protections to CRS products."[26]
2. Risk of Copyright Infringement: Noting that CRS concedes in its aforementioned CRS Report that "[t]o the extent that the material is copyrighted, CRS either: obtains permission for the use; considers its information-gathering function protected by the speech or debate clause; or believes that the use falls under the 'fair use' doctrine of the Copyright Act as applied in the context of the legislative process", Pogo claims there should be no risk of copyright infringement. It adds that, "[s]hould CRS still be concerned about possible copyright infringement, Gary Ruskin, then-Director of the nonprofit Congressional Accountability Project, offered a number of solutions to counter the issue. CRS could ask permission to reproduce portions of copyrighted materials into reports and explain that these reports will be placed on the Internet. CRS could also abridge or eliminate the more lengthy passages which may fall outside the "fair use" claim before the reports are placed on the Internet."[31]
3. Cost Considerations: Pogo claims that a pilot project initiated by Representative Christopher Shays (R-CT) that makes some CRS products publicly available demonstrates how inexpensive providing access to CRS products through the Internet can be. Representative Shays' website provides access to some CRS Issue Briefs, Short Reports, Long Reports, and Appropriations Reports. The pilot project cost only 60-80 hours of programming, 40-50 hours of testing, and the use of an additional existing server. A possibility other than establishing a new website would be to integrate as much information as possible from the CRS and LIS websites into the already-existing THOMAS system.
4 Peer Review of CRS Products: CRS states, "If CRS written products were routinely available on a wholesale basis to academic and other professional peers outside of Congress, CRS analysts might become more conscious of the need to address views, methods, disciplines, and expectations of non-congressional professional peers ... ." (Appendix A, p. CRS-6)

What CRS states as a negative is seen by many as beneficial. Quality peer and public review can only serve to increase the quality of the works produced, thus better informing Congress and the public. GAO embraced the idea that the quality of its reports will be improved through peer and public review. For example, GAO sends its final draft reports to the agencies it has investigated and includes the agencies' comments in its final reports.

5. Member-Constituent Relations: Another of CRS's concerns is that open access to its products will obstruct the Member-constituent relationship. Daniel P. Mulhollan, Director of CRS states:
"[It] threatens the important relationship that Members have with their constituents. Historically, constituents have gone to Members of Congress when they have questions about legislation ... . The wholesale direct dissemination of CRS products to the public would bypass this long standing relationship by denying constituents the benefit of their Members' additional insights, party viewpoints, or regional perspectives on CRS analysis."[32]

According to Librarian of Congress Billington:

"Disclosure of CRS reports and issue briefs by Members and Committees - and greater use of the Internet to achieve such disclosure - is seen as reaching the proper balance between the public's desire for information on the issues before Congress, the preservation of CRS' role in the legislative process, and the protection of the Member's role in informing his/her constituents on their public policy concerns."[30]

But public access to CRS material in no way obstructs Member-constituent relationships. It could, in fact, even improve that relationship. Well-informed constituents can only strengthen the democratic process by asking pertinent questions and offering educated opinions to their Members of Congress. One way of strengthening the relationship would be to establish a central database of CRS products to which Members of Congress could link, as is recommended in the bill to make CRS products publicly available. The Members would be serving their constituents by providing timely and unbiased analyses; the public would see their Members as trying to provide as much unbiased information as possible to keep their constituents well informed and able to participate in the governing process; and the public would have reason to frequent their Members' websites.

Furthermore, improving Member-constituent relationships is hardly a valid argument for creating a monopoly on information. Constituents are entitled to this information in a timely manner without the ideological screening of their Members of Congress, with whom they may not agree.

A final point which also undermines CRS's arguments against making its products public is the fact that the Government Printing Office (GPO) makes many old CRS reports available to the public through its federal depository libraries. Additionally, the Department of State makes current and archived copies of CRS reports, obtained from CRS, publicly available at their website.[33]

2003 CRS internal memo[edit]

The memo states:

PLACING CRS PRODUCT LINKS ON CONGRESSIONAL WEB SITES
Statutory Restriction. The prohibition on publication of CRS products without oversight committee approval appears in the annual appropriations acts for the Legislative Branch. This provision is intended to preserve the role of CRS as a confidential resource solely available to the Congress. The appropriations acts, supplemented by congressional guidance that CRS has received over the years, and supported by judicial opinions, leaves to the Members and committees the decision whether, on a selective basis, to place CRS products in the public domain. Members have long made CRS products available to interested persons either directly, by inclusion in congressional publications, or through their own Web sites.
[...]
Key Risks of Wholesale Publication Without Selectivity. Legislation has been introduced in both houses (S.Res. 54 and H.R. 3630) that would authorize the wholesale public dissemination of CRS products, without selectivity, through Member and committee Web sites. Such an approach raises several policy and institutional concerns:
Impairment of Member Communication with Constituents – The danger of placing CRS, a support agency, in an intermediate position responding directly to constituents instead of preserving the direct relationship between constituents and their elected representatives. This threatens the dialog on policy issues between Members and their constituents that was envisioned by the Constitution.
Risk to Protection of Confidentiality – The current judicial and administrative perception of CRS might thereby be altered, putting at risk speech or debate protection for confidential work.
Change in Mission and Congressional Focus – Over time, CRS products might come to be written with a large public audience in mind and could no longer be focused solely on congressional needs.
Reduction in Service to Congress – Wholesale dissemination would inevitably generate a significant number of comments, questions, and concerns from the public regarding content. In addition to placing a burden on congressional offices, responding to such correspondence would require CRS to shift significant resources away from direct service to the Congress.[34]

CRS Report, "The Congressional Research Service and the American Legislative Process" (2006/2008)[edit]

In the section entitled "Supporting a System of Shared Powers," the report notes that the staff of the U.S. Congress is much larger than in any other national legislature as a consequence of "the underlying nature of the American political system." In contrast to other parliamentary systems where there is "[n]ormally ... a collaborative relationship between the majority party or coalition in the parliament and the political leaders of the government ministries," under the United States Constitution "the powers of the federal government are distributed in a way that is intended and almost guaranteed to create competition and conflict between the legislative and executive branches." In support of the claim that the U.S. system of government, often characterized by a separation of powers, is "in fact ... a system of separate institutions sharing powers," the report details the ways in which "[t]he executive and legislative branches are distinctly separate institutions," as well as ways in which they share both legislative and executive powers; adding that "[t]he reason for this system of shared powers lies in both an historic mistrust of government power and a concern over the efficient administration of the law." The authors of the Constitution [felt that the] best way to protect against abuses of power was to provide for a system of “checks and balances”, and that, although sharing powers can created administrative and deliberative inefficiencies, "having a government that its citizens can control and hold accountable was preferred in 1787, when the Constitution was written, to having one effectively controlled by either the executive or the legislative branch;" and "the fundamental framework of government under the Constitution remains unchanged today." The report adds that "in order for the sharing of power to protect against the abuse of power, more is required than the words of the Constitution."

In the section entitled "Nonpartisan Support for a Partisan Institution", the report adds "another respect in which the mandate of CRS reflects the nature of U.S. political institutions and the party system: although the House and Senate are organized by the Democratic and Republican parties and nearly all Members of Congress are affiliated with one party or the other, CRS is a nonpartisan institution. Its purpose is to inform, not to persuade. ... [i]t is in this environment that CRS exists to serve as a source of nonpartisan analysis and information."

In the section entitled "Serving All the Members of Congress", the report notes that "Representatives and Senators can be independent political decision-makers," and thus "[e]ach Member then needs direct access to a source of information and analysis to help him or her make these judgments — a source of accurate information and expert analysis that is independent and dependable and that has no interest in affecting the Member’s decisions. To serve this need, the resources of CRS are available equally to each Representative and Senator without regard to party, position, or philosophy."

2007 CRS memo, "Distribution of CRS Reports to Non-Congressionals"[edit]

http://www.fas.org/sgp/crs/crs032007.pdf

On March 20, 2007, CRS Director David Mulhollan wrote an internal memo, "Distribution of CRS Products to Non-Congressionals". It describes how distribution controls are being "strengthened and clarified". "Following upon discussions held before the Research Policy Council, I have concluded that prior approval should now be required at the division or office level before products are distributed to members of the public. This policy is effective immediately."

Describing previous policy, the memo noted that "Products have generally not been made available to non-congressionals directly from CRS, with notable exceptions. For example, specifically identified individual products have been furnished by the Inquiry Section to executive and judicial branch offices and employees, and state and local government officials. The research divisions have also distributed products to such entities when it has been deemed to enhance CRS service to the Congress. Additionally, CRS products have been furnished by the Inquiry Section to members of the media and foreign embassies on request, but only if the requester can make specific reference to the product number or title of the report. Product requests can also originate from other non-congressional sources including individual researchers, corporations, law offices, private associations, libraries, law firms and publishers. The Inquiry Section typically declines these requests, and most often refers the caller to his or her congressional representative's office."

Analysts and research staff receive direct requests infrequently; however, "research divisions have on occasion both received and responded to product requests from these same public sources, and have, on occasion, provided products at their own initiative." Also, the Inquiry Section has also furnished CRS products to the media and foreign embassies but only when the requester has made specific reference to the product number or title of the report. Most formal requests from non-congressional sources come to the Service through the Inquiry Section, although many products are provided to these audiences through the informal, collégial dealings of CRS research staff with work contacts in their fields.

Mulhollan explained that "to avoid inconsistencies and to increase accountability," CRS policy now requires prior approval at the division level before products can be disseminated to non-congressionals. "Increased accountability and articulated standards for case-by-case determination are in the interest of both CRS and the Congress and are in conformity with publication policies put forward in the past."

Implementation: CRS policy on the distribution of CRS products to non-congressional audiences is as follows:

(1) U.S. governmental entities: CRS staff may provide appropriate congressional distribution products, upon request and upon prior approval of the assistant or associate director, deputy assistant or associate director, or office head, to agencies in the Executive Branch (including the White House) and the Judicial Branch, as well as state and local government officials when it can be demonstrated that the distribution benefits the Congress by assisting CRS in its work (e.g., reciprocity for information sharing). The Inquiry Section will accept such requests only when a product is specifically cited, either by number or title. Enforcement of Inquiry policy is the responsibility of the Associate Director for Congressional Affairs.
(2) Other non-governmental entities: CRS staff may, upon request and upon prior approval of the assistant or associate director, deputy assistant or associate director, or office head, provide congressional distribution products to academic institutions, professional associations, industry, non-governmental organizations, and other members of the public, but only when it can be clearly demonstrated that the distribution benefits the Congress by significantly assisting CRS in its work (e.g., peer review or expert opinion). Inquiry will continue to decline such requests under the oversight of the Associate Director for Congressional Affairs.
(3) The Media: Products may only be provided to the media by the Inquiry Section if the media requester specifically identifies the product by product number or title. Inquiry dissemination will be monitored by the Associate Director for Congressional Affairs. Divisions, analysts, and research staff and other CRS staff outside of the Inquiry Section who receive requests must obtain the approval of the assistant or associate director, deputy assistant or associate director, or office head prior to dissemination, and distribution should occur only when it is clearly demonstrated that such sharing benefits the Congress by providing value to CRS.
(4) Foreign governments: The Inquiry Section may provide congressional distribution products in response to requests from foreign embassies when the requester provides either the title or citation to the product. Enforcement of this policy is the responsibility of the Associate Director for Congressional Affairs. CRS staff may not furnish products to foreign government entities without prior approval of the assistant or associate director, deputy assistant or associate director, or office head, and distribution should only occur when it is clearly demonstrated that such sharing benefits the Congress by providing value to CRS. Following approval, the assistant director will comply with existing Library of Congress security guidelines for reporting foreign contacts.

April 18, 2007 memo, "Access to CRS Reports"[edit]

CRS Director David Mulhollan wrote an internal memo:[2]

What is the rationale for CRS providing its work solely to the Congress? Three broad concerns go to the heart of the existing policy: impairment of the performance of Members' representational role, risk to confidentiality, and impact on the mission and congressional focus that characterizes our efforts. These issues also inform our policies on furnishing products to individuals outside Congress and our guidelines on staff interactions with the media.

...

Institutional Concerns Regarding Public Access

Confidentiality. The "Speech or Debate" clause of the Constitution, referenced in the above congressional resolutions, states that "for any Speech or Debate in either House, [Members] shall not be questioned in any other Place." While this clause has been interpreted to grant broad legal immunity to Members and their aides for statements made during the course of debate or when activity occurs in the performance of "legislative acts," it has been made clear in recent years that the protection does not extend to representational responsibilities generally. The protection has been extended to areas where it has been considered necessary to prevent impairment of deliberations and other legitimate legislative activities. Of major concern here has been the extent to which a policy permitting significant public dissemination of our products might render the protection that our support to Members currently enjoys under the umbrella of this constitutional provision inapplicable to congressional communications with CRS. Currently, CRS products prepared for the Congress are considered to be protected from scrutiny by third parties without permission of the Congress or the Member for whom the work was prepared. Stated simply, the concern in this regard is that if the Service were to become generally known to frequently distribute products directly to the general public - and thereby to be seen more as a purveyor of products to the public rather than as adjunct staff to Congress - we might be subject to "questioning" (i.e., litigation, subpoena, or other demand for production of documents) regarding our work that would do serious harm to our confidential working relationship with our congressional clients.

Although the Courts have recognized the propriety of congressional activities intended to inform the general public, this informing function has been held to be outside the scope of so-called speech or debate immunity. Recent judicial narrowing of the scope of the application of this protection has exacerbated the potential threat to confidentiality. Case law supports the conclusion that widespread dissemination of products to the general public would likely be viewed by the courts as an exercise of Congress' representational or informing function for which speech or debate immunity would not attach. While an effort could be made to distinguish CRS confidential memoranda from our congressional distribution reports, the potential for damage to speech or debate protection claims for any CRS products would potentially still be significant. Under proposals for wholesale distribution of CRS products to the public, those engaged in such distribution - CRS staff, congressional staff, or Members - might be vulnerable to lawsuits seeking release of CRS files, damages, injunctions, etc. More likely - and more importantly for future relations between CRS and Congress - would be an erosion over time of the idea that CRS works solely for the Congress and that our analysts operate as a confidential staff resource to Members and committees.

Congressional Focus and Resource Issues. Public expectations of access could have significant cost implications for CRS - both in responding to requests and in answering public concerns regarding products provided. Widespread public access to CRS products could cause analysts to become more conscious of the need to address views, methods, disciplines, and expectations of a non-congressional audience, and thereby shift the focus of our products away from their current emphasis on the congressional audience. As a result, our congressional clients, recognizing such a change in the content and protection afforded our work, would either request more confidential memoranda, which are available only to the requester, or, more significantly, no longer have confidence in CRS ' ability to truly serve as their adjunct staff. As we know, memoranda are more resource intensive to prepare than products which are available for distribution to all Members and committees and take advantage of economies of scale. Writing for a public audience also has the potential to alter the extent to which CRS products can rely on a certain level of knowledge on the part of the reader, complicating the analyst's task and perhaps increasing the length of products. There is also the potential for incurring significant costs in any process of creating an effective system for making CRS work available to the public, the monitoring of products for necessary redaction, and the cost of a likely increase in the volume of requests for tailored individual requests for written products that are not made available to the public.

Recent Public Access Issues

Policy on Distribution Outside the Congressional Community. In keeping with the policies outlined above, CRS has generally refrained from making its products directly available to non-congressional requesters, save for a few exceptions based on principles of reciprocity. For example, research divisions have furnished individual products to Executive Branch and Judicial Branch offices and employees, state and local government officials, and representatives of foreign government entities when it has been deemed to enhance CRS service to the Congress. Analysts occasionally respond to requests for products from individual researchers, corporations, law offices, private associations, libraries, law firms, and publishers where a collégial exchange of information is deemed to benefit our work.

With limitations, on occasion CRS also furnishes CRS products to the media and foreign embassies for similar reasons.

I recently polled the divisions on their practices with respect to furnishing products to individuals and organizations not in the congressional community. As a result of the varying practices that were revealed, I restated the CRS policy on distribution of our products to such entities, articulating the need for agreement on standards across the Service to ensure consistency, to better appraise our current practices, and to be better able to articulate the standard of the Service in this regard when asked. This policy looks specifically at the sharing of our products with government entities (both federal, state, and local), with public organizations, institutions, and individuals, with the media, and with foreign embassies.

Clearly, this policy is itself an outgrowth of the publications policy, reflecting the fact that our work is intended for Congress, and it is the Congress that decides when further dissemination is appropriate. Adherence to consistent and articulated standards for sharing with those outside the congressional community is important to our efforts to maintain our confidential relationship with Congress and to any future need to enforce restrictions. Our congressional overseers would expect no less of us. Despite misunderstanding fueled by mis-characterization by the press and others, this policy restatement does not further prohibit dissemination of products under certain circumstances, but simply requires accounting of the practices via division notice and approval.

The Media. I also recently updated the policy on interacting with the media. In doing so, I emphasized that the risks to individual staff members and to CRS as a whole are greater with today's media because of the instant dissemination of news, the competition among media outlets, and the lack of control over quotation, its context and subsequent appearance elsewhere. The updated policy retains the basic requirement that has been a part of the CRS media policy since its inception: "staff must adhere to the basic tenets of CRS, respecting the confidential nature of our work for Congress and the requirements of objectivity, non-partisanship and non-advocacy whenever they speak to the media on matters relating to their work." The policy also provides that all on-the-record media interactions be reported to division/office management, as was urged under the former policy. It describes a role for the Office of Communications in assisting staff in determining if speaking with the media is advisable, and in following up on questions of the accuracy of reporting on staff comments or on CRS products.

The Internet and CRS Products. We are all aware of the proliferation of Internet sites that make CRS products available - some for a fee, some free of charge. In this electronic age it is obviously very difficult to control access to our congressional distribution products that appear on our own Web Site, even with restricted access to that site. Some sites present our products in searchable form, some not. Some are relatively complete in their coverage, while others focus on particular subject areas. Some publishers have even published CRS reports as hard copy books without permission of the author, often in out-of-date and excerpted form that runs the risk of misleading the reader. What they all have in common is that they make these products available without CRS approval. The fact that our work - the product of a government entity - is not copyrighted, makes it legally impossible to prohibit such use. The presence of these access points for our products, however, does not diminish the need for CRS to carefully hew to our obligation not to be involved in public distribution activities.

Conclusion

In part through added exposure, especially through online sources, CRS products have come to be widely cited as authoritative, timely, and accurate sources of information on public policy issues of the day. Audiences, including policy makers, industry leaders, professors, and students, have viewed our products as trusted and valued sources of information. However, over the years we have preserved CRS ' confidential relationship with the Congress by severely restricting access to our products as a general policy. Any relaxation of restrictions on dissemination to the public would be in conflict with the history of legislative provisions, policy statements and communications on the issue. These pronouncements have had the effect of restricting the disclosure or publication of CRS materials by emphasizing that communications from the Service to Congress are constitutionally protected, confidential, and subject to the custody and control of the Congress. The same rationales have been relied upon to limit access to the CRS Web Site to congressional users. I am convinced - to borrow the sound bite I noted at the beginning - that the true value of CRS is as a resource devoted solely to the needs of Congress. In that way, the taxpayers realize the utmost value for their "investment." Our staff is also better able to maintain its reputation for objective, authoritative and advocacy-free expertise devoted to an informed National legislature.

The reasons for limiting public dissemination of our work can be summarized as follows. First, there is a danger that placing CRS, a legislative support agency, in an intermediate position, responding directly to constituents as members of the public, would threaten the dialog on policy issues between Members and their constituents that was envisioned by the Constitution as the essence of the representational role of Members.

Leaving dissemination of CRS products to the discretion of Members avoids placing a "faceless bureaucracy" between constituents and their elected representative. Second, the current judicial and administrative perception of CRS as "adjunct staff of the Congress might be altered if CRS were seen as speaking directly to the public, putting at risk Speech or Debate Clause constitutional protections afforded the confidential work performed by this agency. To date, litigation demands for testimony of CRS employees and production of documents used in preparing memoranda and reports for the Congress have been quashed.

And third, if CRS products were routinely disseminated broadly to the public, over time these products might come to be written with a large public audience in mind and would no longer be focused solely on congressional needs. In addition to placing a burden on congressional offices asked to respond or comment on CRS work, responding to the inevitable questions posed by the public to CRS would likely require the Service to shift significant resources away from direct service to the Congress in order to meet this demand.

Other related policies - dissemination of products to those outside the congressional community and the media policy - flow from similar principles. I believe CRS would be a very different place and suffer a diminution in its role as adjunct staff to Congress were it not for the various restrictions we place on product distribution and staff interaction with the press. And, despite the somewhat hyperbolic reaction of some, there is little new in the recently announced policies nor anything particularly onerous. The majority of our seasoned staff abide by these regulations and understand and are comfortable with the principles that underlie them. Those who have joined CRS in the last few years must also become acculturated in these practices and understand their origin and rationale.

References[edit]

 This article incorporates public domain material from websites or documents of the Congressional Research Service.

  1. ^ a b c d e f g h "Congressional Policy Concerning the Distribution of CRS Written Products to the Public". Congressional Research Service. March 9, 1999. Retrieved 2009-07-27. 
  2. ^ a b c d e Mulhollan, David. "Memo RE: "Access to CRS Reports" To: All CRS STaff". Retrieved 2009-07-27. 
  3. ^ For example, for the 1997 version of this provision, see Pub. L. 105-55, 111 Stat. 1190 (1997).
  4. ^ a b "The Congressional Research Service and the American Legislative Process". Congressional Research Service. 2008. Retrieved 2009-07-25. 
  5. ^ 126 Cong. Rec. S3162 (daily ed. March 27, 1980).
  6. ^ a b 126 Cong. Rec. 6892 (March 27, 1980).
  7. ^ 136 Cong. Ree. S7112 (daily ed. May 24, 1990).
  8. ^ a b Guide to CRS Reports on the Web
  9. ^ Letter from Chairman John Warner and Ranking Member Wendell H. Ford, Senate Committee on Rules and Administration, to Senate Colleagues, June 10, 1998.
  10. ^ "Congressional Research Service Products: Taxpayers Should Have Easy Access". Project on Government Oversight. February 10, 2003. Retrieved 2009-07-27. 
  11. ^ a b c d Strom, Stephanie (May 4, 2009). "Group Seeks Public Access to Congressional Research". New York Times. Retrieved 2009-07-27. 
  12. ^ U.S.Constitution, Art. 1, § 6, clause 1.
  13. ^ 408 U.S. 501, 509, 512 (1972).
  14. ^ See, e.g., Doe v. McMillan, supra; Hutchinson v. Proxmire, 443 U.S. 111 (1979).
  15. ^ Doe v. McMillan, 412 U.S. 306, 324 (1973)(emphasis added). The Court remanded for a determination as to whether the extent of distribution by the Public Printer and the Superintendent of Documents had exceeded "the legitimate legislative needs of Congress, and hence the limits of immunity." Id. On the remand, the lower courts upheld the claim of immunity as to the Public Printer and Superintendent of Documents (374 F. Supp. 1313 (D.D.C. 1974), aff'd, 566 F.2d 713 (D.C.Cir. 1977), cert. denied, 435 U.S. 969 (1978)), but the court of appeals expressly reserved the question of the availability of immunity "in a case where distribution was more extensive...." 566 F.2d at 718. Apparently the only copies distributed outside the federal government in the events that precipitated the suit in McMillan were approximately 172 of 796 copies that had been distributed to various federal agencies.
  16. ^ See Webster v. Sun Oil, 731 F.2d 1 (D.C.Cir. 1984) and 790 F.2d 157 (D.C.Cir. 1986)(communications to CRS analyst are within scope of common law privilege for communications to a legislative body); In re Exxon Corporation, 95 F.T.C. 919 (1980)(FTC subpoena for CRS documents barred by speech or debate immunity and separation of powers doctrine; CRS performs an "essentially legislative function").
  17. ^ See, Doe v. McMillan, note 9, supra.
  18. ^ See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 61-62 (1975) quoting REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 87th Cong., 1st Sess. 24 (Comm. Print 1961) (hereafter REGISTER'S REPORT).
  19. ^ See H.R. Rep. No. 1476, Id. at 73.
  20. ^ 17 U.S.C. §§106(4),(5).
  21. ^ 17 U.S.C. §106(1), (3)
  22. ^ 17 U.S.C. §§101,106(3).
  23. ^ Congressional Research Service, 4 December 1997. ("CRS Memorandum"). Quoted in part by the Congressional Accountability Project at http://www.congressproject.org/infopolicy/crslegalmemo1.html#N_6_
  24. ^ CRS Memorandum at 6.
  25. ^ a b c Gary Ruskin, Director (January 5, 1998). "Placing Congressional Research Service Products on the Internet". Congressional Accountability Project. Retrieved 2009-07-28. 
  26. ^ a b c http://pogoarchives.org/m/gp/gp-Brand-1998-2001.pdf
  27. ^ http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_bills&docid=f:s1578is.txt.pdf
  28. ^ http://www.c-spanarchives.org/congress/?q=node/77531&id=6708753
  29. ^ "The Mission and Strategic Priorities of the Library of Congress FY 1997-2004," www.loc.gov/ndl/mission.html, downloaded February 10, 2003.
  30. ^ a b http://www.pogo.org/pogo-files/reports/government-secrecy/congressional-research-service/gs-ia-20030210.html#6
  31. ^ Memorandum from Gary Ruskin, Director of Congressional Accountability Project, Re: Placing Congressional Research Service Products on the Internet, January 5, 1998. -- http://www.congressproject.org/infopolicy/crslegalmemo1.html
  32. ^ "Statement of Daniel P. Mulhollan, Director, Congressional Research Service, before the Subcommittee on Legislative Appropriations, Committee on Appropriations, United States Senate, Fiscal 1999 Budget Request, March 12, 1998," p. 10.
  33. ^ U.S. Department of State, " Congressional Research Service (CRS) Reports," http://fpc.state.gov/c4763.htm, downloaded September 5, 2001.
  34. ^ Legislation of Interest to CRS: Public Access to CRS Products