White House formally exempts office from FOIA regs

 

The White House on Tuesday will announce new rules exempting an administrative office from subjection to the Freedom of Information Act (FOIA), which allows citizens to obtain government documents from federal agencies. 

In a Federal Register notice scheduled to publish Tuesday morning, the action to exempt the Office of Administration is listed as a final rule, which means there will be no opportunity for public comment. It formalizes a longstanding policy for the office that was upheld in multiple courts.

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The move stems from a lawsuit that began before President Obama took office, but it comes at an odd time – during Sunshine Week, in which government watchdogs promote and push for more transparency.  

“From the day he took office, the President committed his Administration to work towards unprecedented openness in government. Over the past six years, Federal agencies have gone to great efforts to make government more transparent and more accessible than ever,” said Brandi Hoffine, a White House spokeswoman. 

While much of White House operations are not subject to FOIA laws and regulations – including the president, vice president and immediate advisors – one of its largest offices, the Executive Office of the President, must hand over certain documents when requested.  

The Executive Office of the President is headed by the president’s White House chief of staff and includes the Office of Management and Budget and the Council of Economic Advisors.  

The Office of Administration is also within the Executive Office of the President – and complied with FOIA requests for years – but stopped doing so during the Bush administration. 

The Citizens for Responsibility and Ethics in Washington (CREW) sued the office after being denied access to documents it had requested to obtain details about a slew of emails that had gone missing from White House servers.  

After a lengthy appeal, the court upheld the ruling that the Office of Administration, which advises and assists the president, is not an “agency” as defined by the FOIA. 

Since it only “performs only operational and administrative tasks in support of the president and his staff,” the court ruled in 2009, “under our precedent, [the Office of Administration] lacks substantial independent authority.” 

The White House, which has not released any Office of Administration records under FOIA, used the ruling to defend the change. 

“This federal register notice does not change any aspect of the Administration’s FOIA policy.  It simply removes outdated regulations that no longer apply to the Office of Administration and haven’t applied since the Bush Administration,” a White House official told The Hill in an email.  

“Generally speaking, the Administration has gone to great lengths to release more information on the front end so that individuals do not have to file a FOIA to get access to government data and other information,” the official added. 

However, the appeals court ruling is almost six years old, which makes for odd timing – as a week that features organizations pushing for government openness began on Sunday. Monday is National Freedom of Information Act Day. 

“This step makes mockery of that commitment [to transparency], especially given that it's Sunshine Week. The White House has reversed a decades long practice of opening the files of OA to the public,” Anne Weissmann, CREW’s interim executive director and senior counsel, told The Hill. “Apparently they have abandoned even the appearance of transparency.”  

The White House did not respond to questions about the timing of the official rule change, but did note that President Obama won an award from the organizing groups of Sunshine Week in 2011 for his policies. 

A tally of government records last year by the Associated Press paints a less rosy picture – the administration had censored or denied access to records more frequently than ever in 2013 and cited more legal reasons than ever for exempting them. Some redactions could be names or personal information, while others may take up large chunks of entire pages. 

The Obama administration responded to 678,391 FOIA requests in 2014, according to its own count, an increase over last year. The Justice Department says that 91 percent of records were released in whole or in part. 

“While there is always more work to be done, our record demonstrates this Administration’s commitment to transparency is second to none,” the White House said. 

Jordan Fabian contributed.

 

--- This story was updated on March 17 at 11:28 a.m.