Preserving Privacy Inside the Beltway: Responding to Congressional Demands for Sensitive Financial and Medical Information

The 111th and 112th Congresses have been defined by the expansive deployment of Congress’ investigatory powers, raising unique legal challenges for individuals and businesses facing congressional scrutiny. As described in a Bloomberg BNA Privacy & Security Law Report article written by Akin Gump practitioners in this field, recent congressional investigations of the financial services and health care industries have underscored the complex issues that arise when consumer financial and health care information is subject to Congress’ oversight and legislative activities. Disclosure of these materials is ordinarily governed by procedures codified in statute and federal regulations and designed to protect customers’ and patients’ individual privacy interests. Yet, when a congressional committee requests this type of information, the ordinary “rules of the road” do not necessarily apply, creating a process where procedure is defined neither by statute, nor by judicial ruling.

Federal statutes, including the Right to Financial Privacy Act (RFPA) and the Health Insurance Portability and Accountability Act (HIPAA), prescribe procedures for other federal law enforcement, regulatory and investigatory authorities to access such information, yet these statutes do not clearly address congressional requests for such information from private parties. Therefore, when Congress requests access to private financial and health-related information, a potential and practical legal dilemma results: providing such information to Congress raises possible issues of customer privacy (and related civil liability concerns), while withholding the information could run afoul of Congress’ investigative and/or legislative powers and exacerbate congressional scrutiny.

Notwithstanding this legal gray area, congressional committees are typically willing to work with recipients of investigatory requests and demands to preserve the privacy rights inherent in the material requested, provided that the committee ultimately obtains the information necessary to complete its mission. Throughout this process, individuals and businesses facing congressional requests and demands for information should keep several factors in mind:

• The type of sensitive information and the identity of the requesting committee both matter, as congressional committees vary in their jurisdiction to access certain classes of confidential information.
• Maintaining an open dialogue with a congressional committee can help to streamline the process, and it can potentially facilitate negotiations to limit the scope of the sensitive information requested.
• There are a number of additional approaches that can be employed to limit harmful disclosures of sensitive information, including document redactions, issuance of friendly subpoenas and a modified in camera review process.

It cannot be stressed strongly enough that congressional investigations are both legal and political exercises. The political and policy-based circumstances surrounding any given congressional investigation may dictate varying needs for private financial or medical information, as well as varying levels of committee tolerance for the protection of individual or institutional privacy rights. Given the unsettled nature of the law surrounding congressional access to private financial and medical information, counsel that is well-versed in the legal intricacies and unique procedural dynamics inherent in congressional investigations can be an immeasurable asset to corporations and individuals faced with a congressional inquiry. Akin Gump has extensive experience guiding clients through complicated congressional investigations, including extensive requests for sensitive consumer information.

The article, recently published in the Bloomberg BNA Privacy & Security Law Report, can be accessed here.

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