American Oversight v. U.S. Department of Health and Human Services

Court: U.S. Court of Appeals for the D.C. Circuit

Date Filed: Feb. 21, 2023

Background: In 2017, American Oversight, a government watchdog group based in Washington, D.C., submitted Freedom of Information Act requests to the U.S. Department of Health and Human Services and the Office of Management and Budget seeking access to agency communications with members of Congress or congressional staff concerning health care reform.

The agencies turned over some of the requested records but withheld or heavily redacted others. Agency officials claimed that the withheld information was protected from disclosure under the so-called “consultant corollary” doctrine, a judicially created doctrine that some courts have adopted to hold that some communications between a government agency and its outside consultants can be considered  “intra-agency” communications covered by FOIA’s Exemption 5.

American Oversight sued the agencies, arguing that the consultant corollary doctrine does not apply to agency communications with Congress. However, the U.S. District Court for the District of Columbia held that the agencies could withhold the records under the exemption.

American Oversight appealed the decision to the U.S. Court of Appeals for the D.C. Circuit.

Our Position: The D.C. Circuit should reverse the district court’s decision as to the agencies’ Exemption 5 withholdings.

• The consultant corollary doctrine has been superseded by Supreme Court precedent establishing that the plain text of FOIA’s exemptions controls.
• Even if the consultant corollary remains viable, it does not encompass communications between agencies and Congress.

Quote: “Some products of the 1970s — Star Wars, ABBA, carrot cake — have stood the test of time. Others — the Pinto, carpeted bathrooms, and the Watergate salad — have been left to history. The ‘consultant corollary’ doctrine, which originated in a 1971 decision from this Court, is among the latter.”

Update: On May 17, 2024, the D.C. Circuit reversed the district court’s ruling, concluding that FOIA Exemption 5 does not apply to the agency’s communications with Congress about health care reform under the consultant corollary doctrine. The court’s decision hinged on the fact that the members of Congress and their staff members who communicated with agency officials had an independent stake in the debate over health care reform legislation.