Dispatches from the Creation Wars

Once again, the White House attempts to change the rules in midstream. The Bush administration is now arguing that the White House Office of Administration, which provides the administrative services to the White House including IT services, is not subject to the Freedom of Information Act. AP reports:

Opening a new front in the Bush administration’s battle to keep its records confidential, the Justice Department is contending that the White House Office of Administration is not subject to the Freedom of Information Act.

The department’s argument is in response to a lawsuit trying to force the office to reveal what it knows about the disappearance of White House e-mails.

Here’s what the White House is now claiming, and why:

However, the Justice Department maintained in court papers filed Tuesday that the Office of Administration has no substantial authority independent of President Bush and therefore is not subject to the FOIA’s disclosure requirements.

The office has prepared estimates that there are at least 5 million missing White House e-mails from March 2003 to October 2005, according to the lawsuit filed by Citizens for Responsibility and Ethics in Washington, a private advocacy group.

Mind you, the Office of Administration always has handled FOIA requests. The Department of Justice list of contacts for FOIA requests includes a contact person in the Office of Administration; her name is Carol Ehrlich and she even has a title – FOIA officer. How odd that an agency that is not subject to the FOIA would have an FOIA officer to handle requests they’re not subject to.

Even more odd that the White House website has documentation on the Office of Administration answering FOIA requests (here’s the report for FY 2006). Indeed, the White House website for the Office of Administration contains a whole section on FOIA requests, including a list of documents that were “specifically identified for inclusion by the Freedom of Information Act (FOIA), as well as documents for which we have received multiple FOIA requests.

In fact, they have a whole document with their administrative rules for how they comply with FOIA requests and that document requires the Office of Administration to comply with FOIA rules:

The FOIA Officer or his or her designee shall maintain files containing all materials required to be retained by or furnished to the FOIA Officer under this subpart. The material shall be filed by chronological number of request within each calendar year, indexed according to the exceptions asserted, and, to the extent feasible, indexed according to the type of records requested….

Any Office employee or official who receives a FOIA Request shall promptly forward it to the FOIA Officer, at the above address. Any Office employee or official who receives an oral request made under the FOIA shall inform the person making the request of the provisions of this subpart requiring a written request according to the procedures set out herein.

Funny, the Office of Administration sure seems to think that they’re subject to the FOIA. They’ve got an FOIA officer, they publish annual reports of their FOIA compliance and they’ve been complying with FOIA requests all along. Gee, what changed? Oh, that’s right – now there’s an FOIA request for information that could hurt the President politically. Therefore, the Office of Administration is magically no longer subject to the FOIA. The Attorney General shook the shrunken head over the Constitution and uttered the anti-FOIA incantation and the POOF, the FOIA no longer applies. What, you don’t think that’s reasonable? Why do you love the terrorists so much?