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Summer 2009 Bulletin
FOIA and Access
White House Continues to Resist Open Government Group’s FOIA Requests
Some Agencies Seek Public Input on More Openness
The U.S. Circuit Court of Appeals for the District of Columbia ruled on May 19 that the White House Office of Administration (OA) is not subject to the Freedom of Information Act (FOIA).
The court’s unanimous opinion in Citizens for Responsibility and Ethics in Washington v. Office of Administration, 566 F.3d 219 (D.C. Cir. 2009), said the office was not subject to the FOIA “because it performs only operational and administrative tasks in support of the President and his staff and therefore, under [D.C. Circuit] precedent, lacks substantial independent authority.”
The FOIA, at 5 U.S.C. § 552(a), requires covered federal entities to disclose information to the public unless the requested information falls within one of the statute’s exemptions.
Circuit Judge Thomas Griffith authored the opinion, which will allow the OA to keep information about millions of missing e-mails from the George W. Bush Administration secret. The e-mails were lost during Bush’s first term when the administration failed to install electronic record-keeping for e-mail as it switched to a new system.
Citizens for Responsibility and Ethics in Washington (CREW) filed the federal lawsuit after the OA failed to comply with CREW’s April 2007 FOIA request for all available information surrounding the missing e-mails, including reports analyzing potential problems with the system, records of retained e-mails and possibly missing messages themselves and other documents discussing plans to find the missing e-mails. The OA initially said it would comply with the request, but did not turn over any information, or provide a timetable for when it would do so.
According to the court opinion, the OA eventually produced some of the records, but only “as a matter of administrative discretion.” OA refused to turn more than 3,000 pages of potentially responsive records.
The D.C. district court, in Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 559 F. Supp. 2d 9 (D.D.C. 2008), had previously granted OA’s motion to dismiss CREW’s complaint for lack of subject matter jurisdiction after concluding that the OA is not an agency under FOIA because it “lacks the type of substantial independent authority … indicative of agency status for other [Executive Office of the President] components.” However, on CREW’s motion for a stay pending appeal, the district court ordered the OA to preserve any records that might be responsive to CREW’s original FOIA request.
Griffith wrote in the circuit court opinion that “By its terms, FOIA applies only to an ‘agency,’ and the key inquiry of this appeal is whether the Office of Administration is an agency under the Act.” Citing prior cases such as Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980), Griffith stated that the test for whether a particular executive entity was an “agency” for FOIA purposes is whether that entity “wielded substantial authority independently of the President.”
“Because nothing in the record indicates that OA performs or is authorized to perform tasks other than operational and administrative support for the President and his staff, we conclude that OA lacks substantial independent authority and is therefore not an agency under FOIA,” the opinion concluded. “OA need not comply with CREW’s requests because it is not an agency under FOIA.”
The Bush administration had been the original defendants in the lawsuit, and the Obama administration sided with Bush in trying to prevent the recovery of the missing e-mail information. According to a May 19 Associated Press (AP) story, Anne Weismann, CREW’s chief counsel, said the group was disappointed by the ruling but was negotiating with the White House to get access to the OA documents anyway.
“Every president except for George W. Bush has treated OA as an agency subject to the FOIA and we are counting on President Obama to do the same,” Weismann said.
In a May 14 letter to Counsel to the President Gregory Craig, Weismann and representatives from 36 other organizations that advocate for government transparency asked that the Obama administration reconsider its position that the FOIA does not apply to the OA. “[T]he Bush administration abruptly changed course and declared OA is not an agency and therefore need not comply with CREW’s or any other information requests under the FOIA,” the letter said. “This radical departure from the policies and practices of all prior administrations rests on a flawed legal theory that fails to properly consider OA’s role within the Executive Office of the President and its lack of proximity to the President … [and we] urge the administration to reverse the Bush administration’s policy and confirm OA’s status as an agency within the meaning of the FOIA.”
On June 16, CREW filed a new lawsuit in D.C. district court in an attempt to gain access to White House visitor logs detailing visits from coal industry executives. “We’re suing because the Obama Administration has made it clear that they are continuing the policies and practices of the Bush administration and claiming that White House visitors’ records are off limits to the public,” Weismann said in a June 16 ABC News story. The Obama administration also refused FOIA requests from cable network MSNBC seeking access to all White House visitor records since Obama took office.
However, in response to the threat of another FOIA lawsuit from CREW, the administration released a list of visits by health care executives, the AP reported on July 23. The list included only names and dates, not the visitors’ titles or employers.
Craig said in a July 22 Bloomberg News story that Obama decided to release the lists because of “the president’s goal of increasing transparency in government.”
Melanie Sloan, executive director of CREW, said the list “in no way satisfies” its request because the group is seeking the actual visitor records, not a summary. “There is a lot of information in those records that is not in the letter,” Sloan said in a July 23 Washington Times story. “Releasing names for political expediency is not the same thing as transparency. This is not the type of transparency they promised.”
When asked by reporters about the administration’s refusal to release the records, Obama said that “most of time you guys have been in there taking pictures, so it hasn’t been a secret,” the AP reported.
National Archives Appoints First FOIA Ombudsman
The National Archives appointed Miriam Nisbet to be the first director of the Office of Government Information Services (OGIS) on June 10, where she will “provide policy guidance and mediation services for FOIA activities government-wide,” the National Archives said in a press release announcing the appointment.
Nisbet, referred to in a June 11 AP story as a “veteran open-government advocate,” said she was excited to be part of “a new approach to make the Freedom of Information Act work better.”
In an interview broadcast June 19 on NPR’s “On the Media,” Nisbet said her office had the “authorization to mediate as an alternative to litigation when there are disputes between a government agency and a FOIA requester.” Although the OGIS’s opinions are not binding, Nisbet said an opinion from the office “would be part of the administrative record going to court if the case did go to court.” A transcript of the interview is available online at http://www.onthemedia.org/transcripts/2009/06/19/06.
Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media groups, said Nisbet “is a longtime advocate for open government, and this is a promising start for those who want the FOIA to work better.”
According to the AP, Nisbet most recently worked for the United Nations Educational Scientific and Cultural Organization (UNESCO). Before joining the U.N. in 2007, she was legislative counsel of the American Library Association, special counsel for information policy at the National Archives, and deputy director of the Justice Department’s Office of Information and Privacy, where she provided guidance to the entire federal government on how to implement the FOIA.
The OGIS was created by Congress in 2007 to serve as a monitor and mediator for FOIA disputes. (See “President Signs, then Rewrites, OPEN Government Act” in the Winter 2008 Silha Bulletin.)
On August 5, 2009, The Justice Department’s Office of Information Policy (OIP) hosted a “FOIA Requester Roundtable.” A press release announcing the event said it was meant to help FOIA requesters and the OIP’s “FOIA professionals” collaborate to “make the FOIA more user-friendly in this new era of open government.”
In May, the White House solicited public input on open government via the Internet. A notice published in the Federal Register on May 21 invited “members of the public to participate in the process of developing recommendations [by] offering comments, ideas, and proposals about possible initiatives and about how to increase openness and transparency in government.” Comments were due by June 19.
– Jacob Parsley
Silha Research Assistant
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
