Appeals court nixes bids to force transparency from Congress

A federal appeals court ruled Tuesday against two attempts to use the federal courts to force Congress to comply with access requests for records about official activities.

In a pair of unanimous opinions, the same three-judge D.C. Circuit Court of Appeals panel turned down journalist Jason Leopold’s effort to make public more than 100 Capitol Police directives in effect at the time of the Jan. 6, 2021 riot, in addition to rejecting climate change skeptic Robert Schilling’s bid to force the House to reveal details of a committee’s alleged reliance on outside advocates during an investigation into the fossil fuel industry.

However, Judge Michelle Childs said in the Schilling ruling that outside parties might still be able to use the courts to obtain some congressional records more closely focused on official acts taken by committees or the full House.

Childs, an appointee of President Joe Biden, was joined in the rulings by Judges Nina Pillard and Robert Wilkins, both appointees of President Barack Obama.

While the appeals judges rejected Schilling’s claim outright, the ruling on Leopold’s case left the door open to him making a new bid for the Capitol riot-related records he sought.

Schilling’s lawyer, Matthew Hardin, noted the judges rejected the House’s argument that the Constitution’s speech or debate immunity entirely precluded this kind of lawsuit.

“This is very good news for advocates of transparency. The panel reaffirmed that the Common Law Right of Access applies to all three branches of government, and not merely to the executive branch,” Hardin told POLITICO.

“Mr. Schilling takes heart in knowing that records reflecting the ‘official decision’ of Congress — including its official decision to accept private staff, say, for purposes of targeting opponents of a particular agenda — appear to be subject to the Common Law Right of Access,” Hardin wrote.

Leopold worked for BuzzFeed News at the time he brought his suit in 2021 and now works for Bloomberg.

“The decision resolves several key legal issues in Mr. Leopold’s favor and provides him with an opportunity to refile. Mr. Leopold is reviewing his options, including whether to refile,” Leopold’s lawyer Jeffrey Light said via email.

A spokesperson for Speaker Mike Johnson did not immediately respond to a request for comment on the rulings.

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