Cause of Action Institute (CoA Institute) received an interim response yesterday from the General Services Administration (GSA) on a Freedom of Information Act (FOIA) request that suggests the agency is deliberately stonewalling the release of a White House directive instructing agencies on how to respond to congressional oversight requests. Records released by the agency also suggest that the GSA has implemented a “sensitive review” FOIA process by which news media requesters are subject to an extra layer of pre-production review.
The GSA’s Shifting Nondisclosure Policy
As I previously detailed, the GSA Inspector General confirmed in a 2018 report that the Trump Administration issued a written directive in mid-May 2017 instructing agencies effectively to ignore congressional oversight requests from Democratic legislators and other individual members of Congress. The report further confirmed that, prior to the issuance of that directive, the White House relied on “a series of . . . unpublished policies” that amended agency procedures for handling congressional communications, just as the press and transparency community—including CoA Institute—repeatedly alleged.
At the time of the IG report, GSA’s relevant guidance—Order ADM 1040.3—did not reflect the “unwritten” policies in force across the government. Moreover, the guidance cited a controversial May 2017 Department of Justice Office of Legal Counsel (OLC) opinion that the White House had already ostensibly rejected. In an op-ed published in The Hill, I evaluated the White House’s ostensible disavowal of the OLC opinion letter in light of the contradictory guidance found in Order ADM 1040.3.
To date, the GSA has failed to provide CoA Institute with a copy of the White House Office of Legislative Affairs May 19, 2017 “directive.” That document apparently reflected the “oral” policy, which had developed at the GSA and other agencies and which limited disclosure for non-chairmen to publicly available or accessible records. Remarkably, the IG reported that the GSA considered the guidance as a “presidential record,” and therefore outside the scope of public disclosure.
In its recent release, rather than provide CoA Institute with a copy of the directive or argue that the record does not qualify as an “agency record,” the GSA instead provided a copy of its updated policy for responding to congressional requests—Order ADM 1040.4. That order was issued in March 2018 and it is already publicly available on GSA’s online directive library. The guidance is identical to its previous iteration, ADM 1040.3, except for the removal of the citation to the controversial OLC opinion.
CoA Institute requested exactly this sort of revision last summer, but that request went unanswered. It is promising to see the GSA provide some sort of clarification, even though such clarification was not well advertised. But the revised guidance is nevertheless deficient as it does not explain the “unwritten” policies identified by the IG, and it does not address other potential developments, such as the Administration’s potential policy shift considering an increasingly hostile Democrat-controlled House of Representatives.
Sensitive Review of News Media FOIA Requests
In addition to refusing to provide a copy of the White House directive, the GSA released a number of records—including an e-mail chain—that suggest that news media requesters under the FOIA are subject to an extra layer of pre-production review. This sort of “sensitive review” process is concerning because it can lead to improper delay in the release of responsive records.
“Sensitive” FOIA review refers generally to the practice of giving certain requests or requesters extra scrutiny, usually because the records at issue may solicit media attention once disclosed. Although the practice goes by many names—“awareness review,” “high visibility review,” etc.—it nearly always implicates certain categories of requesters or potentially embarrassing or politically significant agency records. At times, the sensitive review process may involve an agency’s public affairs team or other communications specialists, and it often includes political appointees (i.e., non-career officials or employees) at the agencies involved. The process delays and sometimes prevents the disclosure of records that the public has a right to see.
The full extent to which sensitive review has been implemented at the GSA is unknown, so we have filed a new FOIA request to investigate the matter. Our previous work on sensitive review, however, has revealed troubling developments at the Department of Veteran Affairs, the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, and the Federal Aviation Administration—an agency that, like the GSA, has a special tracking policy for news media requesters. And recent reports in the press have discussed the formalization of sensitive review at the Department of the Interior.
Sensitive review, along with other forms of FOIA politicization such as “White House equities” review, is a long-standing and entrenched tradition in the federal bureaucracy. Regardless of which party controls the Executive Branch, the natural tendency of the administrative state has been and likely will always be to keep embarrassing or political sensitive records out of the hands of the public and—most especially—the news media. CoA Institute itself was regularly subject to sensitive review during President Obama’s tenure, and we will likely continue to be singled out for special treatment under President Trump, as the records from the GSA suggest. CoA Institute remains committed to exposing abuse in the practice of sensitive review and advocating for reform to combat all forms of FOIA politicization.
Ryan P. Mulvey is Counsel at Cause of Action Institute
