A federal court in Washington D.C. has sided with the U.S. Government Accountability Office (GAO), ruling that the agency is not subject to the Freedom of Information Act (FOIA). America First Legal Foundation (America First) sued the GAO, an investigative arm of Congress, seeking public disclosure of its records under FOIA. However, the District Court for the District of Columbia dismissed the case, affirming that as an agency within the legislative branch, GAO falls outside the scope of the federal disclosure law.
The decision hinges on the specific definition of an “agency” under FOIA, which primarily targets the executive branch.
GAO: Congress’s Investigative Arm
The Government Accountability Office, established in 1921 (and formerly known as the General Accounting Office), serves as Congress’s auditor, monitoring public spending and looking for waste and inefficiency. The opinion notes that GAO is firmly established as an independent agency *within the legislative branch*. Its leader, the Comptroller General, is appointed by the President from a congressional list and can only be removed by impeachment or a joint resolution of Congress—a structure designed to ensure independence from the Executive Branch.
In this case, America First submitted a FOIA request to GAO in March 2023. After a lengthy delay, GAO responded in May 2024, stating it was not subject to FOIA. Instead, GAO pointed to its own disclosure regulations (4 C.F.R. Part 81), which state that while its policy follows the “spirit” of FOIA, the law itself does not apply. GAO subsequently withheld records under its own internal exemption for “materials that are part of the deliberative process.”
America First exhausted its administrative options and sued, alleging GAO failed to comply with FOIA requirements. GAO responded by moving to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), arguing FOIA simply doesn’t cover them.
The Definition Problem: Who is an “Agency”?
Judge Sparkle L. Sooknanan, presiding over the case, agreed with GAO, finding that America First lacked the statutory standing to compel disclosure under either FOIA directly or under GAO’s own enabling statute.
The core of the legal analysis focused on 5 U.S.C. § 552(f)(1), which defines what an “agency” is for FOIA purposes. This definition includes entities covered by the Administrative Procedure Act (APA) and a subsequent catch-all list.
Crucially, the APA’s definition of an agency explicitly *excludes* the Congress and, by extension, agencies belonging to the legislative branch. The court cited long-standing precedent from the D.C. Circuit and the Supreme Court confirming that GAO is a legislative-branch agency.
America First tried several creative arguments to pull GAO into FOIA’s reach:
Challenging Statutory Text and Structure
The Foundation argued that GAO fit under the FOIA definition as either an “establishment in the executive branch” or an “independent regulatory agency.” The court swiftly rejected both claims.
First, statutory definitions elsewhere in Title 5 distinguish GAO from an “establishment in the executive branch.” Second, the court looked at the definition of an “independent regulatory agency,” which Supreme Court precedent defines as one free from day-to-day supervision by *either* Congress or the Executive Branch. Because GAO is explicitly answerable to Congress, it does not meet this standard. Furthermore, the court noted that recent congressional updates to Title 5 confirm that the list of recognized independent regulatory agencies does not include entities designated as “agencies of Congress,” like GAO.
America First also attempted to import the definition of an “Executive agency” from other parts of Title 5. The court countered that FOIA uses its own specific definition of “agency” (§ 552(f)) which cross-references the APA definition (§ 551(1)), neither of which uses the term “Executive agency.” The court emphasized a fundamental principle of statutory interpretation: Congress chose its words carefully, and where it used “Executive agency” in other statutes but not in FOIA, that omission is meaningful.
GAO’s Powers Don’t Make It Executive
The Foundation further contended that because the Comptroller General is appointed by the President (though confirmed by Congress) and GAO exercises certain functions related to contract oversight and impoundment challenges, it must be performing executive functions and thus be subject to FOIA.
Judge Sooknanan found this irrelevant. The court referenced the landmark Supreme Court case *Bowsher v. Synar*, which already established that Congress views the Comptroller General as an officer of the Legislative Branch, regardless of any executive powers exercised. Even if GAO were exercising executive power—which the court did not necessarily confirm—the explicit exclusion of legislative agencies from FOIA remains decisive. If America First believes GAO is unconstitutionally exercising executive power, the appropriate remedy is a constitutional challenge, not a FOIA lawsuit.
FOIA Not Applicable Via GAO’s Own Statute
Finally, America First argued that 31 U.S.C. § 704(a), which states that “all laws generally related to administering an agency apply to the Comptroller General,” pulls FOIA into effect.
The court found this argument flawed for two reasons. First, § 704(a) only applies “to the extent applicable.” Since GAO is not directly subject to FOIA, its own internal disclosure rules are what matter, and America First failed to bring a lawsuit challenging compliance with § 704(a) itself—it only alleged a failure to comply with FOIA. Second, even if the argument were properly framed, America First failed to identify an existing cause of action allowing a court to enforce § 704(a) against GAO, noting that challenges to GAO under FOIA or the APA are barred because it is a legislative entity.
In conclusion, the court granted GAO’s motion to dismiss, holding that the GAO is a legislative agency, and legislative agencies are not subject to the Freedom of Information Act.