DoJ says records re missing WH e-mails are not subject to public disclosure via FOIA

[BrainGlutton]

In connection with a lawsuit brought by Citizens for Ethics and Responsibility in Washington. Story here.

The Office of Administration provides administrative services, including information technology support, to the Executive Office of the President.

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.

In court papers seeking to end the case, the Justice Department said the White House Office of Administration has no substantial authority independent of President Bush and therefore is not subject to the disclosure requirements of the Freedom of Information Act.

Most of the White House is not subject to the Freedom of Information Act, but certain components within it handle FOIA requests, including the Office of Administration, which issues annual reports on the number of FOIA requests it processes each year.

The 2006 annual report says the Office of Administration processed 65 FOIA requests.

Is the DoJ right? Is the Office of Administration subject to the FOIA or not?

Here’s the Wiki article on the “Bush White House e-mail controversy.”

[Bricker]

No, it’s not.

There were cries of outrage around here (perhaps even from you, BG) when the office the Vice President tried to say it wasn’t part of the Executive Branch.

I was one of the cries too. It was ridiculous.

Now comes a claim similar in method and scope - that the White House Office of Administration is not part of the White House. That’s an equally ridiculous claim.

Yet, for some reason, BG, your posting is phrased in a way that makes me suspect you’d like to find some reason for supporting it.

At the risk of making a personal attack, I believe that your standards and methods of analysis are highly dependant on who benefits, or who is injured, by the result.

In any event, yes, the White House Office of Administration is part of the White House and therefore has the smae limitations that apply to other WH FOIA requests.

[BrainGlutton]

@Bricker

In any event, yes, the White House Office of Administration is part of the White House and therefore has the smae limitations that apply to other WH FOIA requests.

The only obvious counterargument I see to that, as stated, is that the OoA (as noted in the linked article) apparently does process FOIA requests – arguably as a matter of policy, not as required by law.

But, the exceptions section of [url=]FOIA states:

(b) This section does not apply to matters that are–

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

There’s nothing specifically exempting White House records or communications.

And, further down:

(f) For purposes of this section, the term–

(1) “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and

(2) “record” and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.

So, where is the DoJ getting its argument that FOIA does not apply to the White House? The author the article states, “Most of the White House is not subject to the Freedom of Information Act,” but no legal authority is mentioned.

[elucidator]

Gotta wonder about the timing here. Why didn’t they bring this up before? First, they tell us we can’t see them because they’ve gone to the place the candle flame goes when you blow it out. Darn shame about that, tough luck, gee whiz. Love to comply, but can’t, curse the luck, you know how it is with computers…

Now, the song has changed. You can’t see them anyway, even if we had them, which we don’t.

Rather odd. Are they afraid that our computer geeks are better than theirs?

[Captain_Amazing]

@BrainGlutton

So, where is the DoJ getting its argument that FOIA does not apply to the White House? The author the article states, “Most of the White House is not subject to the Freedom of Information Act,” but no legal authority is mentioned.

Here’s the White House’s FOIA page:

http://www.whitehouse.gov/government/eop-foia.html

As for the legal argument, here’s testimony to the House from 2000, as to why the FOIA doesn’t apply to certain parts of the EOP. (Actually, the testimony deals with the application of Privacy Act, but it does so by way of proving that the FOIA doesn’t apply.)

http://www.usdoj.gov/olc/privacyact2.htm

Basically, the testimony is that the FOIA applies to “agencies”, and those parts of the White House whose only function is to advise the President, aren’t considered agencies under the definition. He also sites a lot of legal precedent…Armstrong v. EOP, Meyer v Bush, Rushforth v Council of Economic Advisors, and so on.

[elucidator]

The White House is enamored of that most sophomoric of rhetorical devices: “Let’s define your terms”.

[Billdo]

@elucidator

The White House is enamored of that most sophomoric of rhetorical devices: “Let’s define your terms”.

Or, put another way, it depends what your definition of ‘is’ is.

[BrainGlutton]

@Captain Amazing

Here’s the White House’s FOIA page:

http://www.whitehouse.gov/government/eop-foia.html

That page specifically lists the Office of Administration as a WH office that is subject to FOIA.

[Captain_Amazing]

@BrainGlutton

That page specifically lists the Office of Administration as a WH office that is subject to FOIA.

I know it does.

[BrainGlutton]

@Captain Amazing

I know it does.

So they actually seem to be saying, “The Office of Administration is subject to FOIA, except when we don’t want it to be.”

[ElvisL1ves]

No, they *actually * seem to be saying “Fuck you”.

[BJMoose]

No, they are saying both.

Where’s that article Cecil did on starting one’s own country. . . .

[marshmallow]

Well, since we’re all claiming this and that, I claim the federal income tax doesn’t apply to me. I’m a mini-decider.