Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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?
Comments
Sadly, according to the Washington Post coverage of this, they may have a shot at winning this one. A ruling in 1996 determined that the NSA is not subject to FIA request in spite of having acted as though it was subject to it for years prior to the ruling. And now, the requisite quote:
"Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said that given the previous ruling on the NSC, the White House may be successful in its bid to close off its administrative office to public scrutiny.
"It's obnoxious, and it's a gesture of defiance against the norms of open government," Aftergood said. "But it turns out that a White House body can be an agency one day and cease to be one the next day, as absurd as it may seem."
Posted by: Eric | August 23, 2007 10:19 AM
How it is that a law who's sole purpose was making sure the Executive Branch couldn't hide misdeeds from the public could fail to cover the White House's own administrative office? That'd be like arguing that personnel departments aren't covered by employment equality laws.
Posted by: Julian | August 23, 2007 10:56 AM
I attempted to do a quick search for the 1996 decision regarding the NSA, but could not find it. My understanding is that the claim has to do with a) the definition of agency and b) the types of agency documents that are covered by FOIA. I am not an expert on this, however, and could be mistaken.
Posted by: Eric | August 23, 2007 12:28 PM
If a White House body can be an agency one day and cease to be one the next day wouldn't it still be subject to the date on the request being that the request date was prior to any change in the agencies obligations on the following day?
Posted by: Gene Goldring | August 23, 2007 12:35 PM
The argument would be that because it was acting as though it was subject to FOIA does not mean that it was. I don't haven't been able to find the '96 case, but the definition included in FOIA of agency includes the executive office of the president. However, certain internal deliberations and legal communications are not subject to FOIA.
Again, I think all of this is sad -- almost as bad as the Director of National Intelligence's statements that debate on NSA surveillance programs will lead to deaths of Americans -- in that we are basically seeing the argument made that democracy is bad for national security. Transparency is so important in a democracy that we have pushed for it in recipients of foreign assistance from the US, the World Bank and other multilateral assistance programs. The US government, however, we should just trust on faith, apparently.
Posted by: Eric | August 23, 2007 2:23 PM
First it was the office of the Vice President and now this. My theory is there is a black hole in the vicinity that will soon suck in the entire Executive Branch. I suspect said black Hole is married to Lynn Cheney.
Posted by: kehrsam | August 23, 2007 3:08 PM