Court Pulls Curtain Over White House E-mails

by Chris George
May 19, 2009

The United States Court of Appeals for the D.C. Circuit ruled today that the White House Office of Administration (OA) does not need to respond to Freedom of Information Act (FOIA) requests.

Circuit Judge Thomas Griffith, writing for the 3-0 majority, concluded: “the Office of Administration is not [covered by FOIA] because it performs only operational and administrative tasks in support of the President and his staff and therefore, under our precedent, lacks substantial independent authority.”

The Office of Administration, “which handles personnel, technology and financial support for the White House,” had complied with FOIA for much of its history, “until 2007, when the Bush Administration abruptly asserted that the office was exempt.” The reversal prompted a lawsuit in August 2007 from Citizens for Responsibility and Ethics in Washington (CREW) after millions of Bush White House e-mails were allegedly lost.

CREW filed a FOIA request seeking “records about the EOP’s e-mail management system, reports analyzing potential problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to find the missing e-mails, and proposals to institute a new e-mail record system.” Initially, CREW and OA agreed on a time table for the release of these records, but shortly thereafter the Bush administration claimed that the office was exempt from FOIA. The administration’s position was that the administrative support and services provided by the OA to the Executive Office of the President placed it “outside FOIA’s definition of ‘agency.'” The district court had upheld the administration’s argument in February 2008.

Last week, OMB Watch joined with 36 other organizations concerned with transparency and accountability in a letter to the White House Counsel, asking “the administration to reverse the Bush administration’s policy and confirm OA’s status as an agency within the meaning of the FOIA. Such a reversal best accords with the actual functioning of the OA and President Obama’s January 21 memoranda concerning transparency and open government.”

If the Office of Administration is permitted to operate in secret, it is a serious disservice to the American people and their ability to hold their elected officials accountable. It stands directly counter to the promise of “the most open administration in history” if that administration has an unchecked power to manage its own communication records. If the Obama administration does not abide by FOIA with regards to OA, then it is essential that Congress takes the initiative and amends FOIA so that these important processes do not remain in the dark.