Democracy Forward and American Oversight Celebrate Victory for Transparency in Health Care Reform Open Records Case

Washington, D.C. – In a victory for transparency and accountability, the D.C. Circuit Court of Appeals on Friday ruled in favor of American Oversight, represented by Democracy Forward, in a case regarding the release of Trump-era public records about health-care reform. 

The successful appeal, argued by Democracy Forward Senior Counsel Jessica Morton, overturns an August 2022 judgment that allowed government agencies to withhold certain communications with Congress by using a Freedom of Information Act exemption typically reserved for agency employees.

“From the start, we’ve been confident that records of communication between federal agencies and Congress are not covered by the Freedom of Information Act exemption protecting intra-agency deliberations,” said American Oversight interim Executive Director Chioma Chukwu. “We’re pleased the DC Circuit agreed with our position and sided with transparency and free information as the government’s withholdings in this case extended beyond the plain language of the statute and undermined the entire purpose of the law. This was the correct result, and after a years-long delay, we look forward to the release of these important records.”

“This is a huge win for transparency, accountability, and democracy,” said Skye Perryman, President and CEO of Democracy Forward. “This ruling is precedent-setting and will help make sure government officials are not able to hide behind the ‘consultant corollary’ — a loophole that was being used to hide important public documents about healthcare reform. Democracy Forward is honored to work alongside American Oversight and very proud of this win.”

The communications sought by American Oversight included messages exchanged between Trump administration officials in the Department of Health and Human Services (HHS) and Office of Management and Budget (OMB) and members of Congress or their staff in early 2017 regarding efforts to repeal or weaken the Affordable Care Act. After American Oversight sued HHS and OMB for the records in May 2017, the agencies released many records but withheld or applied heavy redactions to all substantive exchanges with Congress, arguing that the communications fell under a judge-made extension of the FOIA exemption protecting inter- or intra-agency deliberations known as the “consultant corollary.” 

In May 2022, a federal judge ruled that the agencies could continue withholding the communications under the exemption, a decision that became final in August and that American Oversight appealed. Today’s ruling from the D.C. Circuit Court of Appeals makes clear that government agencies cannot use the “consultant corollary” to evade public disclosure of records when the so-called consultants actually have their own interests at stake in the outcome of agency decision-making.

The contours of the “consultant corollary” test have been the subject of significant debate in lower courts over the past 25 years. 

“Today’s opinion provides essential clarification going forward that the government can no longer use the consultant corollary to prevent the public from understanding the role that interested parties have in developing agency decisions,” said Morton. “This is a big win, a welcome ruling, and great news for efforts to hold power to account.”

Read the decision here.