Federal Housing Finance Agency Constitution Center 400 7th Street, S.W. Washington, D.C. 20219 Telephone: (202) 649-3800 Facsimile: (202) 649-1071 www.fhfa.gov August 16, 2017 Austin R. Evers American Oversight foia@americanoversight.org Re: FHFA FOIA Request No.: 2017-FOIA-050 Dear Mr. Evers: This letter is in response to your Freedom of Information Act (FOIA) request, dated May 9, 2017. Your request was processed in accordance with the FOIA (5 USC 552) and FHFA’s FOIA regulation (12 CFR 1202). You requested the following: “1. All communications between FHFA and Congressman Jeb Hensarling, any other member of the House Financial Services Committee, or any staff member working for either the House Financial Services Committee or one of its members concerning proposed legislation or administrative actions. Please provided all responsive records from January 20, 2017 to the date the search is conducted. 2. All communications relating to the opinion of Committee Chairman Jeb Hensarling that communications between the House Financial Services Committee and federal agencies are not subject to disclosure under the Freedom of Information Act, including but not limited to instructions, directives, or guidance received on this issue from Chairman Hensarling or his staff, as well as internal agency correspondence on the issue. Please provided all responsive records from January 20, 2017 to the date the search is conducted. 3. Any memoranda, policies, rules, protocols, restrictions, directives, guidance, or other guidelines addressing how FHFA responds to FOIA requests that implicate communication with Congress or records created at the request of Congress. Please do not limit the date of the search for records responsive to this portion of American Oversight’s FOIA request.” You also requested “records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request.” FHFA FOIA No. 2017-FOIA-050 Page 2 Please note that pursuant to FHFA’s FOIA regulation 12 CFR 1202.7(b), in determining which records are responsive to a request, FHFA will include only records in its possession as of the date the FOIA request was received. Therefore, in response to numbers one and two of your request, FHFA searched its records for documents from January 20, 2017 to the date your request was received May 9, 2017. After conducting its search, FHFA located ten documents responsive to your request. Details regarding each requested item are described below. Please note that following its procedures, FHFA has consulted with the Committee named in your letter and the Committee, in this instance, has determined to permit the release of the letters that are the subject of your FOIA request. This action in no way commits either the FHFA or the Committee to produce records of this type in the future, nor should any future waiver or other voluntary release be contemplated for Committee materials. Request Number 1 Document Description Withheld in full or FOIA Exemption(s) in part (redacted) or Applied released in full n/a n/a FHFA has no responsive documents. (6) Draft letters in response to Withheld in full Chairman Jeb Hensarling’s April 3, 2017 letter Email in regards to Chairman Jeb Withheld in part Hensarling’s April 3, 2017 letter (redacted) 2 2 2 FHFA May 1, 2017 response to Chairman Jeb Hensarling’s April 3, 2017 letter Chairman Jeb Hensarling April 3, 2017 letter to FHFA FHFA has no written policy or guidance responsive to your request. FHFA Help Desk search request email 2 3 4 Release in full 5 USC 552 (b)(5), pertaining to the deliberative process 5 USC 552 (b)(5), pertaining to the deliberative process n/a Release in full n/a n/a n/a Release in full n/a A copy of the releasable material is attached. This is the final decision on your FOIA request. If you wish to appeal any aspect of FHFA’s decision, you must forward within 90 days: • • A copy of your initial request; A copy of this letter; and FHFA FOIA No. 2017-FOIA-050 Page 3 • A statement of the circumstances, reasons, or arguments for seeking disclosure of the affected record(s). The appeal must be sent either electronically by 5pm, no later than 90 days after the date of this letter, to foia@fhfa.gov, or postmarked and mailed to the “FOIA Appeals Officer” at 400 7th Street, SW, 8th Floor, Washington, DC 20019. The subject line, or the envelope and the letter of appeal, must be clearly marked “FOIA Appeal.” Please note that all mail sent to FHFA via the United States Postal Service is routed through a national irradiation facility, a process that may delay delivery by approximately two weeks. For any time-sensitive correspondence, please plan accordingly. Your FOIA request is releasable to the public under subsequent FOIA requests. In responding to these requests, FHFA does not release personal information, such as home or email addresses, and home or mobile telephone numbers, which are protected from disclosure under FOIA Exemption 6 (5 USC 552(b)(6)). Additionally, you may seek dispute resolution services from the Office of Government Information Services (OGIS) at the National Archives and Records Administration. OGIS can be reached at 8601 Adelphi Road – OGIS, College Park, Maryland 20740-6001; by email at ogis@nara.gov; by telephone at 202-741-5770 or toll free at 1-877-684-6448; or by facsimile at 202-741-5769. There are no costs associated with processing your request. If you have any questions regarding the processing of your request, please contact me directly at stacy.easter@fhfa.gov or 202-649-3067. Sincerely, /s/ Stacy J. Easter FOIA/Privacy Officer FOIA Public Liaison Attachments From: To: Cc: Subject: Date: Attachments: Easter, Stacy Help Desk Easter, Stacy; Thaxton, Dennis FOIA Search - 2017-FOIA-050 Monday, May 15, 2017 2:03:02 PM image001.jpg Please search the following:   Employee(s): 1. Ellen Bailey 2. Mel Watt 3. Eric Stein 4. Carrie Johnson 5. Bob Ryan 6. Janell Byrd-Chichester 7. Megan Moore 8. Peter Brereton 9. Jeannie Schroeder 10. Dion Spencer 11. Dallin Merrill 12. Stefanie Johnson 13. Corinne Russell 14. David Lee Search Term(s): 1. Jeb Hensarling 2. Committee on Financial Services 3. Financial Services Committee Date Range: January 20, 2017 – May 9, 2017 Search Location: emails,  correspondence tracking system, IMS Folder to Save Docs:  S:\FOIA\2017-FOIA-050 Due Date: 5/30/2017     Thanks,   Stacy J. Easter Freedom of Information Act/Privacy Officer FOIA Public Liaison Federal Housing Finance Agency 400 7th Street, SW Washington, DC 20219 Office: 202?649-3067lCell: 202-604?1024l Fax: 202?649-4067 FH FA Seal From: Sent: To: Cc: Subject: Attachments: Brereton, Peter 27 Apr 2017 10:24:23 -0400 Moore, Megan;Lee, David A.;Pollard, Alfred;Schroeder, Jeannine Colbert, Julian (Drew) RE: Hensarling Letter response to Hensarling re FOIA 04262017.docx (b)(5) Peter From: Moore, Megan Sent: Thursday, April 27, 2017 9:55 AM To: Lee, David A. , Pollard, Alfred ; Brereton, Peter ; Schroeder, Jeannine Cc: Colbert, Julian (Drew) Subject: RE: Hensarling Letter (b)(5) From: Moore, Megan Sent: Thursday, April 27, 2017 9:45 AM To: Lee, David A. • Pollard, Alfred - Brereton, Peter • Schroeder, Jeannine Subject: RE: Hensarling Letter Thanks Anyone else? Particularly flagging the new language From: Lee, David A. Sent: Thursday, April 27, 2017 8:36 AM To: Moore, Megan - Pollard, Alfred • Brereton, Peter • Schroeder, Jeannine Subject: RE: Hensarling Letter Megan No comments other delete "requestst- at the end of the second to last paragraph David A. Lee Managing Associate General Counsel Senior Agency Official for Privacy Federal Housing Finance Agency From: Moore, Megan Sent: Wednesday, April 26, 2017 6:04 PM To: Pollard, Alfred ; Lee, David A. ; Brereton, Peter ; Schroeder, Jeannine Subject: FW: Hensarling Letter Attached are Mel's edits to the Hensarling letter. Please review, Thank you FEDERAL HOUSING FINANCE AGENCY Office of the Director May 1, 2017 The Honorable Jeb Hensarling Chairman Committee on Financial Services U.S . House of Representatives 2129 Rayburn House Office Building Washington, DC 20515 Dear Chairman Hensarling: In your letter of April 3, 2017 on behalf of the Committee on Financial Services, you requested the Federal Housing Finance Agency (FHF A) to treat any documents created or compiled by FHF A in connection with any responses to Committee communications, including but not limited to any replies to the Committee, as records of the Committee and subject to the Committee' s control and to confirm that FHFA has policies and procedures to assure conformance with this policy. This will confirm that FHFA' s established practice when it receives a FOIA request for congressional communications or correspondence is to consult with the Committee or individual member of Congress prior to releasing any documents that FHFA believes are required to be released by the FOIA. This practice has been in place for a number of years and is followed by FHFA' s FOIA Office, Office of Congressional Affairs and Communications and other appropriate FHFA personnel. While the above confirms our process regarding responses to FOIA requests, your letter also requests that we confirm our policies regarding release of documents in response to "any other provision of law or agreement." Our policies regarding these requests may require refinement which could benefit from clarification regarding the intent of the Committee on Financial Services. For example, it is not clear how or whether you intend for the directives in your letter to apply in the following instances: • • • When FHF A receives litigation discovery requests, subpoenas or requests from the FHF A Office of Inspector General or other government agencies such as the Office of Management and Budget or the Office of Personnel Management; When FHF A provides the same or a similar response to another House or Senate Committee; When the request involves existing documents or research that FHFA has also gathered for other purposes but has produced to the Committee at the Committee' s or at a Congressional member' s request; or 400 7th Street, S.W. , Washington, D.C. 20024 • 202-649-3801•202-649-1071 (fax) Page2 • To routine transmittal or response letters or routine reports to Congress, such as our Monthly Foreclosure Prevention Reports. FHF A already complies fully with the directives in your letter related to FOIA requests and wants to comply fully with your other directives, but would benefit from further clarification regarding the matters outlined above. Thank you for providing further clarification either by contacting me directly or by contacting Peter Brereton, Associate Director for Congressional Affairs at 202-649-3022. Sincerely, Melvin L. Watt cc: The Honorable Maxine Waters, Ranking Member .IEB HENSARLING, TX, CHAIRMAN "lLllIlEEl?l gang [If MAXINE WATERS, CA, RANKING MEMBER an Ej??llift? mu ??inuliurn tannst ??ioz Building Washington, E0: 20m April 3, 2017 The Honorable Melvin Watt Director Federal Housing Finance Agency 400 7th Street SW Washington, DC. 20219 Dear Director Watt: Re: Committee Intent to Control Congressional Records I write on behalf of the Committee on Financial Services of the U.S. House of Representatives (?Committee?) to inform you and the Federal Housing Finance Agency (?Agency?) of the Committee?s practices and procedures during the 115th Congress. As you may be aware, the Committee has legislative and oversight jurisdiction over the Agency, pursuant to U.S. House of Representatives Rule Accordingly, the Committee?s Members and staff may communicate with you and your Agency in connection with various legislative, oversight, and investigative matters. Because of the often sensitive and confidential nature of such communications, and in order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee?s control. All such documents and communications constitute congressional records, not ?agency records,? for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee. Additionally, such congressional records are subject to the absolute protections of the Speech or Debate Clause of the Constitution, U.S. Const. art. I, 6, cl. 1. The Hon. Melvin Watt April 3, 2017 Page 2 Accordingly, the Committee expects that the Agency will decline to produce any such congressional records in reSponse to a request under the Freedom of Information Act or any other provision of law or agreement, on the grounds that such documents are not the Agency?s documents to produce, and (ii) are constitutionally privileged, in addition to any other grounds the Agency may assert. It is the Committee?s policy to include a legend on its legislative, oversight, and investigative correspondence to the Agency re?ecting its intent to retain control of all such communications and responsive documents. The legend is included as a matter of best practice, but accidental failure to include the legend on a particular legislative, oversight, or investigative communication is immaterial, because the Committee intends to retain control over all such communications and any documents created or compiled in response thereto. To ensure that the Agency and the Committee efficiently communicate in the future regarding the maintenance, confidentiality, and disposition of the Committee?s congressional records, by no later than May 1, 2017, please respond to the Committee in writing to confirm that your Agency will decline to produce any congressional records in response to a request under the Freedom of Information Act or any other provision of law or agreement, that your Agency will discuss said request with the Committee, that your Agency has policies and procedures in place to address this issue, and that these policies and procedures have been shared with appropriate Agency personnel. If you have any questions regarding this request, please have your staff contact Brett Sisto of the Committee staff at (202) 225-7502. We look forward to working with them in the future. Sincerel HE NSARLING Chairman cc: The Honorable Maxine Waters, Ranking Member