The rules and regulations regarding transparency in special counsel investigations have received heightened scrutiny in the days since Special Counsel Robert Mueller III delivered his full report on his Russia investigation to Attorney General P. William Barr. The current federal regulations – in place since 1999, after the Ethics in Government Act expired and the Office of Independent Counsel was converted into the Office of the Special Counsel – stipulate that the special counsel is required to produce a full report to the attorney general at the end of the investigation. The attorney general must then provide Congress with a summary report that explains the conclusions of the special counsel, which AG Barr provided to Congress last week. According to regulations, the full report provided by the special counsel to the attorney general is “confidential” and the summary provided by the attorney general to Congress is intended to be “brief.”
Former acting Solicitor General Neal Katyal, who drafted the current regulations, recently published an opinion piece in the Washington Post in which he wrote that the “confidential” and “brief” stipulations were intended to “avoid another Starr report” that would unnecessarily go “into detail about someone’s intimate conduct,” as the “subject of such a report would have no mechanism to rebut those allegations or get his or her privacy back.” However, Katyal further noted “the regulations never required the attorney general’s report to Congress to be short or nonpublic. Rather, that text expressly included a key provision saying the ‘Attorney General may determine that public release of these reports would be in the public interest.’” Katyal goes on to argue that while “there is no one provision in the regulations that expressly requires a public release of Mueller’s report,” the full report should nonetheless be released by the attorney general because “the public must have confidence that justice was done, and the attorney general cannot treat an investigation of the president the way he can treat any other investigation.”
The attorney general has several exemptions from FOIA law that they are able to cite in refusing to release records and in fact Attorney General Barr has already cited Federal Rule of Criminal Procedure 6(e), which bars the release of grand jury material, as one of the reasons he is unable to release the full special counsel report. Given these exemptions, it seems unlikely that the special counsel’s report will be released via FOIA – however, there are several organizations trying nonetheless. The Electronic Privacy Information Center filed a FOIA lawsuit within an hour of the special counsel delivering his report to the attorney general, which seeks over a dozen categories of records, including Mueller’s final report, as well as any drafts and exhibits related to the report. There was another FOIA request filed by American Oversight also seeking the special counsel’s report and other materials.