Article by Adrianna C. Rodriguez1
Adrianna Rodriguez is an Associate in the Washington D.C. office
As the economy cautiously recovers from the collapse of the housing market, we've learned remarkably little about the role of two of the boom and bust's most notorious players—Fannie Mae and Freddie Mac. One reason for the dearth of information is that Fannie and Freddie—federally chartered corporations created to promote home ownership—are not subject to the Freedom of Information Act (FOIA). On his first day in office, President Barrack Obama committed his administration to a new age of transparency within the government.2 However, since taxpayers poured $185 billion into Fannie and Freddie to save them from collapse, two legislative attempts to make them subject to FOIA have failed.3 As a result, we are no closer today than we were five years ago to understanding exactly how Fannie's and Freddie's unchecked actions fuelled the boom that sent the economy into a tailspin we are still recovering from today.
For nearly half-a century FOIA has allowed the public not only to keep their government open and transparent in the present, but also to hold it accountable for its past blunders. Enacted in 1966, FOIA guarantees the public access to federal agency records.4 Agencies subject to FOIA include "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency."5 Under FOIA, these agencies are required to make their records "promptly available to any person" who requests them.6 The law's presumption of access is subject to nine exemptions, including for information that is classified in the interest of national security and information reflecting the deliberative process of an agency.7 In addition, the law does not extend to federal courts, Congress, and many entities that straddle the private-public divide, such as government-sponsored enterprises (GSEs), like Fannie and Freddie.8
Fannie Mae and Freddie Mac
Fannie Mae, officially the Federal National Mortgage Association, and Freddie Mac, officially the Federal Home Loan Mortgage Corporation, are congressionally chartered, publicly traded, for-profit corporations.9 Congress created both corporations to promote homeownership by making it easier for prospective homebuyers to obtain mortgages. The corporations do this by operating in the secondary mortgage market where they purchase mortgages issued by private institutions in the primary mortgage market, package them into mortgage-backed securities, sell them to investors, and guarantee payment of the principal and interest of the security. Through their activities in the secondary mortgage market, Fannie and Freddie promote home ownership by creating the liquidity that enables private lenders to make more mortgages.10
Between 2004 and 2007—the housing boom years—Fannie and Freddie aggressively purchased and guaranteed home mortgages to many people whose credit could not support the mortgages they were offered.11 This led to record homeownership rates and record profits for Fannie and Freddie. When housing prices plummeted in 2007, Fannie and Freddie were left holding billions of dollars in delinquent or defaulted mortgages for devalued properties.12 The enterprises did not have sufficient reserves to honor their debt obligations, including their guarantees of mortgage-backed securities.13 To save them from collapse, Congress created the Federal Housing Financing Agency (FHFA) as part of the Housing and Economic Recovery Act of 2008.14 The FHFA placed Fannie and Freddie into conservatorship on September 7, 2008.15 Under conservatorship, the FHFA, a federal agency subject to FOIA, "assumed all the powers of the shareholders, directors, and officers" of Fannie and Freddie.16
Although Fannie and Freddie have received FOIA requests over the years, the federally created corporations consistently have taken the position that as government-sponsored enterprises they are not "agencies" subject to FOIA.17 The FHFA supports this position.18 Thus, despite having been placed entirely within the control of a federal agency, Fannie's and Freddie's records remain beyond FOIA's reach.19 In addition, the D.C. Circuit has found that not even all the Fannie and Freddie records that the FHFA has access to are subject to FOIA. In 2010, Judicial Watch, a nonprofit government watchdog, made a FOIA request to the FHFA for "[a]ny and all Freddie Mac and/or Fannie Mae records concerning campaign contributions" and "[a]ny and all Fannie Mae and/or Freddie Mac records concerning policies, stipulations, and/or requirements concerning campaign contributions."20 The U.S. District Court for the District of Columbia granted summary judgment for the FHFA finding that the agency did not control Fannie's and Freddie's records such as to make them subject to FOIA simply by being statutorily able to obtain the records from Fannie and Freddie as a result of conservatorship.21 The U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision.22 Interestingly, neither court questioned Fannie's and Freddie's status as private companies not subject to FOIA.23
The structure of Fannie and Freddie has evolved over the years. Although the enterprises have not been subject to FOIA as they presently exist, both have been "agencies" subject to FOIA at some point in their history. In fact, Fannie was originally established as an agency within the Department of Housing and Urban Development.24 It was not until 1968 that Congress transferred Fannie to private control, and thus placed it outside of the reach of FOIA.25 In 1976, a decade before Freddie was transferred to private ownership, the U.S. Court of Appeals for the District of Columbia Circuit in Rocap v. Indiek held that Congress intended to bring entities like Freddie within the reach of FOIA.26 The court found that Freddie had "federal characteristics" that made it a "government controlled corporation" subject to FOIA, including that it was federally chartered, its Board was appointment by the president, it was "subject to close governmental supervision and control over its business transactions," and it was empowered "to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes or provisions" of its enabling act.27
Making Fannie and Freddie FOIAble
The issue of access to Fannie and Freddie garnered renewed interest as the public began taking stock of the housing collapse, the recession and the billions spent in the bailout. In 2011, Representative Jason Chaffetz (R-UT) introduced the "Fannie Mae and Freddie Mac Transparency Act."28 He originally introduced the bill in 2010, but it died in committee.29 Under Chaffetz's bill, Fannie and Freddie would be considered agencies subject to FOIA "during any period that such entities are in conservatorship or receivership." The bill had 19 cosponsors—17 Republicans and 2 Democrats.
The FHFA opposed the bill. In a hearing before the House Financial Services Subcommittee on Capital Markets and Government Sponsored Enterprises, Edward DeMarco, acting director of the FHFA, argued that making Fannie and Freddie subject to FOIA would not "enhance public understanding of the operations or activities of the government," and would be counterproductive as it would raise concern for other corporations that may be put into conservatorship about the possibility of being subject to FOIA.30
By contrast, supporters of the bill in prepared statements to the committee lauded efforts to open Fannie and Freddie. One supporter saw the bill as a way to "enable citizens to better understand how these two entities failed at such a massive cost."31 Another criticized Fannie's and Freddie's chronic "opaqueness" suggesting the law should be expanded to ensure continuing access to the corporations should they survive conservatorship.32 Although the bill got further than its predecessor in 2010, the "Fannie Mae and Freddie Mac Transparency Act" again died in committee, and no attempts have been made to reintroduce the bill in later sessions.
The effort to bring private corporations subsidized by the government within the ambit of FOIA is not without precedent. The National Railroad Passenger Corporation, or Amtrak, a for-profit corporation created by Congress in 1970 to take over inter-city railway travel, is statutorily subject to FOIA.33 Other quasigovernmental entities like the U.S. Postal Service and the Federal Deposit Insurance Corporation (FDIC) have also been made subject to FOIA.34
Similar to Amtrak and the FDIC, Fannie and Freddie are private corporations that serve a congressionally delegated public function in the housing market. To many, the enterprises' public purpose and close coordination with the government to regulate the housing market equate to an implicit guarantee by the government, and by extension the taxpayers, of Fannie's and Freddie's investments.35 Indeed, some have argued that this implicit backing encouraged Fannie and Freddie to take on the risks that contributed so heavily to the collapse of the housing market.36 Moreover, now that the FHFA has assumed complete control of Fannie and Freddie, the enterprises are more like "government-controlled corporations" than ever before.
Fannie, Freddie, and the FHFA have consistently opposed subjecting the enterprises to FOIA. They have argued that subjecting the enterprises to FOIA would open the flood-gates of requests from public interest groups, the press, and the public, among others, and that the costs of enacting procedures to comply with the FOIA and respond to these FOIA request would be burdensome on the enterprises.37 Their arguments are unpersuasive. Administrative costs have never excused an agency from complying with FOIA.38 Moreover, on the heels of the recession it is evident that the greatest cost to the public came not from the expense of transparency, but from unchecked actions of these enterprises.
In 2008, taxpayers were hit with the $185 billion bill to save Fannie and Freddie that they never knew they were on the hook for. Fannie and Freddie enjoyed a huge advantage in the secondary mortgage market with taxpayers' implicit backing of their risky investments. In the years since the bust, taxpayers have learned the high-level account of what happened—that Fannie and Freddie were allowed to operate largely unregulated in the secondary mortgage market making risky investments with bad mortgages—and yet much remains in the dark. Without access to Fannie's and Freddie's records a deeper understanding is nearly impossible. Indeed, it is difficult to understand how the FHFA's acting director can take the position before Congress that access to Fannie and Freddie records that could shed light on how the decisions to pursue such risky investments were made, who knew about the risks of these investments, how the decisions to continue making these risky investments were made, and what kind of support Fannie and Freddie received during this period from the government would not enhance the public's understanding of what happened and their government's role in it. Moreover, it is difficult to reconcile that position with the administration's commitment to openness and transparency in government.
Despite their troubles, Fannie and Freddie continue to guarantee the majority of home mortgages in the country. The enterprises posted their biggest quarterly profits ever in the first quarter of 2013. Fannie reported $8.1 billion in profits—the largest in its history—and Freddie Mac posted $4.6 billion—the second largest in its history.39 Congress has also begun considering several proposals for what comes next for Fannie and Freddie after conservatorship: whether the enterprises will be allowed to continue, or whether they will be wound-up and replaced with an entity more like the FDIC. None of the proposals specifically consider access to what will be left of Fannie and Freddie, if anything, or access to any new entities that replace them.40
Taxpayers couldn't access Fannie and Freddie records to understand their actions at the height of the market, and they still can't access those records to understand what exactly happened to cause the crash. Consistent with the goal of FOIA in ensuring transparency and accountability in the functions of the government, Fannie and Freddie must be subject to FOIA—whether they remain in conservatorship, are restored to health and released from conservatorship, or wound-up and replaced by Congress.
Originally published in TTIPs Committee News
Footnotes
1 Adrianna C. Rodriguez is an associate in the Washington, D.C., office of Holland & Knight LLP. She is a member of the firm's Litigation Section and the National Media Practice Team. Ms. Rodriguez would like to thank Charles D. Tobin, chair of Holland & Knight's National Media Practice Team for his help and guidance throughout the editing process.
2 Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 21, 2009) ("My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.").
3 Federal Housing Finance Agency Office of the Inspector General, Fannie Mae and Freddie Mac: Where the Taxpayers' Monday Went, at 2, (May 24, 2012) available at http://fhfaoig.gov/Content/Files/FannieMaeandFreddieMac-WheretheTaxpayersMoneyWent_0.pdf.
4 5 U.S.C. §552. See President Lyndon B. Johnson's Signing Statement (July 4, 1966) available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB194/Document%2031.pdf ("I signed this measure with a deep sense of pride that our nation, unlike some nations, values highly the right of people to know how their government is operating.").
6 Id. §552 (a)(3)(ii).
7 Id. §552 (b). FOIA's presumption of openness does not apply to 1) information classified in the interest of national security; 2) information related to internal personnel rules practices of an agency; 3) information specifically exempted from disclosure by statute; 4) trade secrets; 5) information reflecting agencies' deliberative process; 6) information constituting "a clearly unwarranted invasion of personal privacy"; 7) records compiled for law enforcement purposes; 8) reports "prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;" and 9) geological information concerning wells.
8 Id. §551 (1).
10 Frequently Asked Questions about Freddie Mac, Freddie Mac, http://www.freddiemac.com/corporate/company_profile/faqs/?intcmp=AFCPFA#1 (last visited July 27, 2013); Funding the Market, Fannie Mae, http://www.fanniemae.com/portal/funding-the-market/marketplace-liquidity.html (last visited July 27, 2013).
11 History of the Government Sponsored Enterprises, Federal Housing Finance Agency, http://fhfaoig.gov/LearnMore/History (last visited July 27, 2013).
12 Id.
13 Where the Taxpayers' Money Went, supra note 3, at 2.
14 Id.; see also 12 U.S.C. § 4501 et seq.
15 Statement of FHFA Director James B. Lockhart (September 7, 2008) available at http://www.fhfa.gov/webfiles/23/FHFAStatement9708final.pdf.
16 Frequently Asked Questions, Federal Housing Finance Agency, http://fhfaoig.gov/LearnMore/FAQ (last visited July 27, 2013).
17 Declaration of July E. Katzman in Support of Defendant's Motion for Summary Judgment, Judicial Watch, Inc., v. Federal Housing Finance Agency, No. 09-1537, ¶ 3 (D.D.C. January 29, 2010) ("Over the years, Fannie Mae has received periodic request for information under FOIA. Because Fannie Mae is a private, shareholder-owned corporation principally involved in private commercial transactions, and not a government agency, it has been our policy to reply to any FOIA requests with a standard written response that states that Fannie Mae is not an agency and, therefore, is not subject to FOIA."); Declaration of Hyacinth Kucik in Support of Defendant's Motion for Summary Judgment, Judicial Watch, Inc., v. Federal Housing Finance Agency, No. 09-1537, ¶ 4 (D.D.C. January 29, 2010) ("Freddie Mac's position is that it is not an agency subject to the FOIA. Therefore, the corporation does not provide information in response to requests for information pursuant to the FOIA.").
18 See Transparency, Transition, and Taxpayer Protection: More Steps to End the GSE Bailout on H.R. 463 Before the H. SubComm. On Capital Markets and Government Sponsored Enterprises, 112th Cong. 9-10 (2011) (statement of Edward J. DeMarco, acting director of the Federal Housing Finance Agency).
19 See Judicial Watch, Inc. v. Federal Housing Finance Agency, 744 F. Supp.2d 228 (D.D.C. 2010), affirmed 646 F. 3d 924 (D.C. Cir. 2011) .
20 Id. at 231.
21 Id. at 236.
22 Judicial Watch, Inc. v. FHFA, 646 F.3d 924 (D.C. Cir. 2011).
23 Id. at 928 ("Although we appreciate Judicial Watch's interest in how much money Fannie and Freddie gave to which politicians in the years leading up to our current financial crisis, satisfying curiosity about the internal decisions of private companies is not the aim of FOIA.").
25 History of the Government Sponsored Enterprises, Federal Housing Finance Agency, http://fhfaoig.gov/LearnMore/History (last visited July 27, 2013).
26 Rocap v. Indiek, 539 F.2d 174, 181 (1976).
27 Id. at 180.
28 H.R. 463, 112th Cong. (2011).
29 H.R. 5539, 111th Cong. (2010).
30 See Transparency, Transition, and Taxpayer Protection: More Steps to End the GSE Bailout on H.R. 463 Before the H. SubComm. On Capital Markets and Government Sponsored Enterprises, 112th Cong. 9-10 (2011) (statement of Edward J. DeMarco, acting director of the Federal Housing Finance Agency) ("I urge the subcommittee to consider carefully the harm that could be done by subjecting the Enterprises to FOIA.").
31 Id. at 85-86 (statement of David C. John, senior research fellow at The Heritage Foundation).
32 Id. at 91 (statement of Anthony B. Sanders, distinguished professor of real estate finance at George Mason University).
33 49 U.S.C. §24301(e) ; 1970s-The Journey Forward, Amtrak, http://history.amtrak.com/amtraks-history/1970s (last visited July 27, 2013).
34 FDIC Disclosure of Information, 12 C.F.R. Part 309; U.S. Postal Service Release of Information, 39 C.F.R. Part 265.
35 N. Eric Weiss, Fannie Mae's and Freddie Mac's Financial Status: Frequently Asked Questions, Congressional Research Service, at 1 (Sept. 27, 2012) available at http://www.fas.org/sgp/crs/misc/R42760.pdf ("Congressional charters give the GSEs a special relationship with the federal government, and it is widely believed that the federal government implicitly guarantees their $1.2 trillion in bonds and $3.7 trillion in MBSs.").
36 Charles Lane, It's time to fix Fannie Mae and Freddie Mac, Wash. Post, Jan. 7, 2013, http://www.washingtonpost.com/opinions/charles-lane-fix-fannie-mae-and-freddie-mac/2013/01/07/8baa5f12-58ee-11e2-beee-6e38f5215402_story.html.
37 See Transparency, Transition, and Taxpayer Protection, supra note 30 at 9-10 (statement of Edward J. DeMarco, acting director of the Federal Housing Finance Agency); see also Declaration of July E. Katzman in Support of Defendant's Motion for Summary Judgment, Judicial Watch, Inc., v. Federal Housing Finance Agency, No. 09-1537, ¶¶ 6-7 (D.D.C. January 29, 2010); Declaration of Hyacinth Kucik in Support of Defendant's Motion for Summary Judgment, Judicial Watch, Inc., v. Federal Housing Finance Agency, No. 09-1537, ¶ 4 (D.D.C. January 29, 2010); Declaration of David A. Felt in Support of Defendant's Motion for Summary Judgment, Judicial Watch, Inc., v. Federal Housing Finance Agency, No. 09-1537, ¶¶ 17-19 (D.D.C. January 29, 2010).
38 See e.g. Rocap v. Indiek, 539 F.2d 174, 180 (1976) ("[B]y enacting the Freedom of Information Act, Congress determined that the benefits to be derived from 'open government' outweighed the costs and that these costs would, and should, be absorbed within the operating budgets of the agencies.").
39 Ilyce Glink, How much do Fannie and Freddie still owe us? CBS Money Watch, May 27, 2013, http://www.cbsnews.com/8301-505145_162-57585689/how-much-do-fannie-and-freddie-still-owe-us/.
40 See Editorial Board, Housing finance reform is off to a promising start, Wash. Post, June 30, 2013, http://articles.washingtonpost.com/2013-06-30/opinions/40292585_1_fannie-and-freddie-home-loans-housing-finance-reform. Cheyenne Hopkins, Hensarling Predicts Committee Passage of Housing Reform Bill, Bloomb erg, July 19, 2013, http://www.bloomberg.com/news/2013-07-19/hensarling-predicts-committee-passage-of-housing-reform-bill.html.
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