Court holds for Bush administration on FOIA

A federal appeals court has upheld a lower court’s decision that the White House’s Office of Administration (OA) isn’t subject Freedom of Information Act requests, a position the Bush administration took when asked for information from private groups about its archiving practices for e-mail messages.

The decision on OA’s status is in response to a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW). That organization was dissatisfied with the Bush administration’s response to two FOIA requests for information from the White House’s investigation into millions of e-mail messages the group alleges the Bush administration failed to properly archive.

In June 2008, a U.S. district court judge sided with the Bush administration. The argument that OA was not subject to FOIA represented a shift for that office, which had published FOIA regulations from 1980 until August 2007.

In agreeing with the lower court’s decision on OA’s status, the U.S. Court of Appeals for the District of Columbia affirmed that OA’s previous positions on its agency status didn’t affect the legal question of whether that office is covered by FOIA. The appellate judges concluded OA wasn’t because that office lacks substantial independent authority.

“Because nothing in the record indicates that OA performs or is authorized to perform tasks other than operational and administrative support for the President and his staff, we conclude that OA lacks substantial independent authority and is therefore not an agency under FOIA,” D.C. Circuit Judge Thomas Griffith wrote in an opinion released May 19.

Earlier, groups that advocate open government sent a letter to President Barack Obama's top lawyer asking the administration to make OA subject to FOIA.

"We are disappointed in the D.C. Circuit's ruling, which failed to come to grips with the fact that OA is not the functional equivalent of the sort of close presidential adviser Congress intended to exclude from the FOIA's definition of agency,” said Anne Weismann, CREW’s chief counsel. "Regardless of this legal ruling, CREW and 36 other organizations have called on the Obama administration to grant the public access to OA's documents under the FOIA as a matter of policy.”

Meanwhile, CREW, George Washington University's National Security Archive and the Obama administration are seeking to settle out of court separate but related litigation filed in September 2007. The groups sued the Bush administration, accusing it of violating the Federal Records Act by not recovering, restoring and preserving millions of electronic communications and by not establishing an electronic records management system that complies with that law.

The messages in question are from a period that includes the invasion of Iraq, key developments in the Valerie Plame leak investigation and the government's response to Hurricane Katrina. A U.S. district judge ordered that case stayed March 31.