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Federal Housekeeping Statute

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TheFederal Housekeeping Statute,codified at Title 5, Section 301 of theUnited States Code, is a provision of federal law authorizing the heads of federalexecutive departments to issue regulations concerning their departments' internal governance and operations.[1][2] At times, federal departments and their agents have cited regulations issued under the housekeeping statute in order to refuse compliance with subpoenas. These refusals are sometimes referred to as exercises of ahousekeeping privilege. Claims of housekeeping privilege have been the subject of a number of lawsuits, including a 1951 case before theU.S. Supreme Court and several cases decided by federal appellate courts.[3][4]

Background

The Federal Housekeeping Statute wascodified at 5U.S.C. § 301 on September 6, 1966, as part of Public Law 89-554. However, the statute had already been part of federal law since before 1951, when it was involved in a case before theUnited States Supreme Court.[2][3] According to a 2005 article published in theWilliam & Mary Bill of Rights Journal by William Bradley Russell Jr., a trial lawyer working in private practice, Congress has at times granted to Cabinet secretaries various forms of housekeeping authority over department records and other business matters since the first Congress in 1789.[4]

Provisions

The full text of the Federal Housekeeping Statute reads as follows:[1]

“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.[5]”
—5 U.S. Code § 301[1]


The housekeeping statute uses the definition ofexecutive department provided in 5 U.S.C. § 101, which lists the following agencies:[6]

Theory and practice

Confidentiality privileges claimed by federal agencies under the housekeeping statute

At times, federal departments and their agents have cited regulations issued under the housekeeping statute in order to claim confidentiality privileges and refuse compliance with subpoenas. These refusals are sometimes referred to as exercises of ahousekeeping privilege. Claims of housekeeping privilege have been the subject of a number of lawsuits, including a 1951 case before theU.S. Supreme Court and several cases decided by federal appellate courts.[3][4]

In its 1951 decision inUnited States ex rel. Touhy v. Ragen, theUnited States Supreme Court upheld aDepartment of Justice housekeeping regulation and reversed a contempt order issued by a federal district court against aFederal Bureau of Investigation (FBI) employee who defied a deposition subpoena. According to an explanation ofTouhy and the housekeeping statute by law firm Jackson Rosenfield LLP, "The Court held that the contempt citation was improper because the Department’s regulation, which gave the Attorney General the power to decide whether to comply with a subpoena, was valid, and the agent was simply obeying a lawful instruction from a superior."[3]

The article from Jackson Rosenfield LLP continues with a discussion of the case law that followedTouhy. It claims that since that decision, federal courts have required assertions of housekeeping privilege to have a legal basis beyond the housekeeping statute alone; however, the courts have not been able to agree conclusively on when and how these claims should be judicially reviewed:[3]

“Although the Court’s holding was really quite narrow, federal agencies urged a far more expansive reading ofTouhy: that as long as an agency enacted strict regulations governing the release of information by subordinates, the agency had the authority to defy federal subpoenas. Thus, in the wake ofTouhy, many government agencies refused to permit their agents to testify in litigation unless testifying was on non-controversial issues or would advance the agency’s own interests. ...

Within the last few decades, federal courts have reined in this expansive reading ofTouhy and clarified that, whileTouhy regulations may empower the head of a federal agency to decide whether the agency will comply or resist a subpoena, the legal basis for any opposition to the subpoena must derive from an independent source of law such as a governmental privilege or the rules of evidence or procedure. The Federal appellate courts are split, however, over the issue ofjudicial review of an agency’s decisions not to comply with a subpoena, with some holding that the agency’s action should be reviewed according to the Federal Rules of Civil Procedure, and others that it should be judged under theAdministrative Procedure Act’s ('APA’s') 'arbitrary and capricious' standard, 5 U.S.C. § 706.[5]

”
—Jackson Rosenfield LLP, "Dealing withTouhy: Compelling Non-Party Deposition Testimony from a Government Agent"[3]


Trial litigation attorney William Bradley Russell Jr. argued in a 2005 article in theWilliam & Mary Bill of Rights Journal that the housekeeping statute "is susceptible of being tortured, and has been tortured, with judicial sanction, it must be admitted, into a claim of privilege against disclosure and inspection so all-encompassing that it may fairly be said that there is no hope of obtaining inspection of a public record not specifically opened by Congress except through the courtesy of the Government."[4] The article goes on to say:

“Federal agencies today often claim a privilege of confidentiality that is really no privilege at all. These claims are based on a relatively unimportant 'housekeeping' statute that grants the heads of federal agencies the power to make regulations for 'the custody, use, and preservation' of agency records. The law on this matter is widely misunderstood. Federal agencies often interpret this housekeeping statute as granting a substantive privilege to withhold information. Indeed, there are many valid reasons for a federal agency to claim a privilege. And the housekeeping statute facilitates agency decisions about claims of privilege by allowing agencies to make regulations requiring subordinates to report to decision-makers subpoenas for agency documents. The statute thus assures that only those approved by an agency will make decisions about whether to comply with a subpoena or to assert a claim of privilege. The housekeeping statute can do nothing more than this. If an agency is to withhold documents from the courts, it must do so in compliance with the law of privilege.[5]”
—William Bradley Russell Jr., "A Convenient Blanket of Secrecy: The Oft-Cited But Nonexistent Housekeeping Privilege" (2005)

See also

External links

Footnotes

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