Opinion: Despite Pledge of Transparency, Obama Is Clogging Information Flow

This op-ed originally appeared on NationalLawJournal.com, April 15, 2014

Administration’s overuse of FOIA exception blocks legitimate requests for records.

Daniel Z. Epstein and Mark J. Rozell, The National Law Journal

When President Barack Obama issued a memorandum on his first day in office on the Freedom of Information Act encouraging transparency, it was a promising first step toward being the “most transparent administration in history.” Three months later, however, the president’s chief lawyer secretly advised government agencies to send to the White House all records involving “White House equities” that are identified in response to any document request, FOIA or otherwise.

The largely elusive and undefined term “White House equities” greatly expanded what the White House has access to. Previously its access was limited to documents that originated within the White House.

Consequently, federal agencies are sending politically sensitive requests to the White House for review, delaying the release of records to the media, public requesters and even to Congress, violating the letter and spirit of FOIA.

It is crucial that the public knows what the White House is doing to hinder transparency. For example, in 2010, an Associated Press investigation found that the White House screened the Department of Homeland Security’s FOIA requests related to the economic-stimulus plan, as well as requests for the calendars of cabinet members. Making matters worse, Homeland Security applied extra scrutiny to FOIA requests and congressional requests that sought politically sensitive information. Political staffers at the department demanded to know information about requesters, including their occupations and where they lived.

That the White House proactively seeks to screen requests suggests that the administration is more concerned about negative press than transparency. In April 2012, the media reported that the General Services Administration (GSA) had squandered $822,000 on a posh conference in Las Vegas. The scandal drew heavy criticism for the administration.

A FOIA investigation conducted by Cause of Action, a Washington-based nonprofit government watchdog group, found that only a few weeks later, Seth Green­feld, a senior assistant general counsel at the GSA, forwarded five FOIA requests related to the conference to Jonathan Su at the White House Counsel’s Office. According to documents Cause of Action procured via FOIA, Greenfeld wrote to Su, “Per your request, here are the five FOIA requests that in some manner ask for the 2010 Western Regions Conference website and its contents.” The president is effectively using the notion of “White House equities” to turn the FOIA process on its head. Although Congress designed FOIA to allow the public to know what the government is up to, the White House review process allows the government to know what the media are up to, potentially chilling the free press.

SIGNIFICANT DELAYS

A number of agencies target media requesters for extra review, including the departments of the Treasury, Defense, and Housing and Urban Development, often delaying production to well past FOIA deadlines. A March 23, 2010, request from Cox Television was significantly delayed after the GSA provided records to the House of Representatives and the White House for “comment,” according to a report from the GSA inspector general. The request sought e-mails “between the GSA and the staffs of U.S. Representatives Nancy Pelosi, Silvestre Reyes, and Zack Space.” At the time of the inspector general’s September 2010 report, the request had been pending for 118 days. The response deadline for FOIA, however, is 20 days, or at most 30 days in “unusual circumstances.”

The use of “White House equities” to screen document requests also hinders congressional oversight. Records from the Department of Interior, for example, show that the National Park Service failed to respond to a March 27, 2013, congressional document request, instead sending the documents to the White House, Office of Management and Budget, and Department of Justice for review. When the documents had still not been produced after six months, the House Oversight and Government Reform Committee was forced to issue a subpoena. Similarly, emails obtained by Cause of Action from the Environmental Protection Agency indicate that White House review delayed an April 10, 2013, document request from the House oversight committee to the agency. In response, the committee sent a Nov. 8, 2013, subpoena to the EPA for communications with White House officials concerning the delay.

The Obama administration cannot credibly claim to be transparent when it publicly issues memoranda advocating for openness in the FOIA process, but then secretly instructs agencies to refer all records with “White House equities” to the White House for review. Not only is the FOIA process significantly and illegally stalled by White House review — a fact that agencies zealously guard from requesters — but it permits the political interests of the administration to trump the important policy goals of FOIA. The White House’s attempts to subvert the purposes of FOIA by demanding to review potentially damaging and politically sensitive requests may protect the President’s own interests, but at the expense of the governmental transparency and accountability he had promised to advance.

Daniel Z. Epstein is executive director of Cause of Action, and Mark J. Rozell is acting dean of the School of Public Policy at George Mason University and author of the book “Executive Privilege.”

Related Documents: White House Equities in FOIA Requests

White House and Department of Justice Memos

May 20, 2014

FOIA request to EPA regarding:

  1. All documents and communications between and among employees of the U.S. Environmental Protection Agency (EPA) and employees of the Executive Office of the President, including, but not limited to, the White House Office and the Office of  Management and Budget, referring or relating to congressional requests for information. The relevant time period for this request is April 15, 2009 to May 15, 2014.
  2. All documents produced to the House Committee on Oversight and Government Reform in response to their November 7, 2013 subpoena served upon EPA Administrator Gina McCarthy.

In 2013, Cause of Action sent 20 FOIA requests to various agencies regarding the review of agency records by the Office of White House Counsel.

AgencyRequest DateFinal ResponseResponse Time*Documents
NARA11/26/2013
12/9/20138No responsive docs
NASA11/26/2013
12/24/201319No responsive docs
SBA11/26/2013
2/21/2014 58No responsive docs
GSA11/26/2013
1/9/2014
30PDF
Education8/9/2013
9/3/201316
EPA7/2/2013
9/30/2013
62PDF
DOI**8/9/2013
11/8/2013
53PDF
USDA11/26/2013
2/27/2014
62PDF
DOL11/26/2013
6/27/2014147
Commerce11/26/2013
7/25/2014166PDF
Energy**6/26/2013
10/27/2014335
DHS11/26/2013
Response Pending238
DOJ11/26/2013
Response Pending238
DOT11/26/2013
Response Pending238
HUD11/26/2013
Response Pending238
State11/26/2013
Response Pending238
VA11/26/2013
Response Pending238
DOD**8/9/2013
Response Pending312
HHS**8/9/2013
Response Pending312
Treasury (IRS)**5/29/2013
Response Pending363

*As of November 6, 2014

** Government shutdown ran October 1 through October 16, 2013 (10 business days) which is subtracted from pending days.

FOIA Appeals

March 27, 2014: FOIA Appeal to USDA

April 2, 2014: FOIA Appeal to GSA

Agency Inspectors General’s Reports on FOIA

In the wake of the DHS FOIA scandal, Senator Grassley and Congressman Issa sent a joint August 25, 2010 letter to 29 Inspectors General, asking them to investigate: (a) whether FOIA requests were given more scrutiny based upon the identity of the requester, and (b) the extent to which political appointees were systematically made aware of the requests and participate in FOIA decision-making. Cause of Action sent FOIA requests to the agencies that had not publicly posted their responses to the inquiry.

Federal AgencyRequest DateFinal ResponseResponse Time Link to Report
DHS OIGPublicly postedPublicly postedPublicly postedReport
DOE OIGPublicly postedPublicly postedPublicly postedReport
DOT OIGPublicly postedPublicly postedPublicly postedReport
EPA OIGPublicly postedPublicly postedPublicly postedReport
NRC OIGPublicly postedPublicly postedPublicly postedReport
SEC OIGPublicly postedPublicly postedPublicly postedReport
SSAPublicly postedPublicly postedPublicly postedReport
StatePublicly postedPublicly postedPublicly postedReport
Treasury IGPublicly postedPublicly postedPublicly postedReport
FHFA5/30/2013
5/31/2013
2Report
HHS OIG5/30/2013
6/3/2013
3Report
SBA5/30/2013
6/6/2013
6Report
DOI OIG5/30/2013
6/7/2013
7Report
DOL OIG7/9/20147/18/20147Report
GSA OIG5/30/2013
6/12/2013
10Report
OPM OIG5/30/2013
6/12/2013
10Report
DOC OIG5/30/2013
6/14/2013
12Report
NASA OIG5/30/2013
6/14/2013
12Report
FTC 5/30/2013
6/17/2013
13Report
GAO5/30/2013
6/17/2013
13Report
HUD OIG5/30/2013
6/21/2013
17Report
VA OIG5/30/2013
6/24/2013
18Report
DOD OIG5/30/2013
6/27/2013
21Report
NARA OIG5/30/2013
7/8/2013
28Report
Education OIG5/30/2013
7/23/2013
39Report
DOJ5/30/2013
9/18/2013
80Report
USDA OIG5/30/2013
9/20/2013
82Report
EAC OIG5/30/2013
9/30/2013
88Report
CIA OIG5/30/2013
Failed to fulfill request

 

Cause of Action Appeals GSA Redactions Related to White House Equities FOIA

Cause of Action sent 20 FOIA requests to federal agencies regarding the White House’s review of FOIA and other document requests. Four federal agencies produced documents that were included in our report released for Sunshine Week 2014. We previously appealed a FOIA to USDA regarding the agency’s improper redactions under attorney-client communications. This appeal concerns the General Services Administration’s response to our FOIA request.

GSA’s production letter stated:

You will note information was redacted from these e-mail communications based on the fifth and sixth exemptions of  FOIA, 5 U.S.C. 552(b)(5) and (6). The redactions under the fifth exemption were made to protect attorney-client communications and deliberative process material.

In our appeal, we argue:

  1. The Deliberative Process Privilege Does Not Protect Communications Between GSA and the Office of White House Counsel.
  2. The Attorney-Client Privilege Does Not Protect Communications Between GSA and the Office of White House Counsel.
  3. Exemption 6 May Have Been Applied Too Broadly.

Documents:

November 26, 2013 FOIA Request

January 9, 2014 Production Letter and Responsive Documents

Cause of Action FOIA Appeal to GSA re: White House Equities by CauseOfAction

Cause of Action Sues CPSC for Withholding Documents

FOR IMMEDIATE RELEASE                                                                                                 CONTACT:      

April 1, 2014                                                                                                       Mary Beth Hutchins, 202-400-2721

Cause of Action Sues CPSC for Withholding Documents

What is the Consumer Product Safety Commission Trying to Keep from the Public About Buckyballs?

WASHINGTON – Cause of Action (CoA), a government accountability organization, sued the Consumer Product Safety Commission (CPSC) today for failing to release documents to the public about Craig Zucker, the former CEO of the company that sold Buckyballs. Well past the statutory 20 day deadline, the CPSC has yet to produce any documents in response to a November 12, 2013 Freedom of Information Act (FOIA) request CoA submitted.

“This administration was just pegged with the title the ‘most secretive’ administration in history and the CPSC’s refusal to produce documents is another example of that spirit of secrecy,” said CoA Executive Director Dan Epstein. “Americans have an interest in how federal agencies conduct oversight, and the CPSC’s consistent unresponsiveness to our inquiry is a disservice to the public.”

CoA’s FOIA requested:

  1. All records underlying CPSC’s estimate [that small, high-powered magnet sets were associated with 1,700 emergency room-treated injuries between 2009 and 2011].
  2. All records related to the drafting, preparation and clearance of the April 12, 2013 CPSC recall release regarding the recall of Buckyballs® and Buckycubes® by six retailers (CPSC Recall Release 13-168).
  3. All records comprising the monthly progress reports of the six retailers who agreed to participate in the Buckyballs® and Buckycubes® magnet recall that was announced on April 12, 2013 (CPSC Recall Release 13-168).
  4. All records reflecting, regarding or referencing, and all communications between, CPSC staff and Strong Force, Inc. regarding the product marketed as NeoCube magnet sets.
  5. All records generated, downloaded or created by CPSC and/or its staff containing, discussing, reflecting, regarding or referencing expressions of public criticism or concern with respect to:  (1) their conduct concerning the recall of Buckyballs®, Buckycubes®, NeoCube or any other magnet sets, and/or (2) their actions against [M&O] and/or Mr. Craig Zucker.
  6. All records generated, downloaded or created by CPSC and/or its staff referencing or concerning Mr. Craig Zucker.

Read the complaint here.

About Cause of Action:

Cause of Action is a non-profit, nonpartisan government accountability organization that fights to protect economic opportunity when federal regulations, spending and cronyism threaten it. For more information, visit www.causeofaction.org.

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins,  202-400-2721

###

 

Cause of Action Appeals USDA Redactions Related to White House Equities FOIA

Cause of Action sent 20 FOIA requests to federal agencies regarding the White House’s review of FOIA and other document requests. Four federal agencies produced documents that were included in our report released for Sunshine Week 2014.

The U.S. Department of Agriculture (USDA) received our FOIA request on November 26, 2013 and sent us a response letter on February 26, 2014. The documents produced by USDA used heavy (b)(5) redactions to the point where no substantive information was included (email subject headings were also redacted). Compared to 3 other agencies that produced documents, USDA’s was the only agency that failed to provide any substantive information. In USDA’s response letter, it stated it made the redactions pursuant to the attorney-client privilege.

One such privilege is the attorney-client privilege, which protects confidential communications between an attorney and client relating to a legal matter for which the client has sought professional advice. This privilege also encompasses any opinions the attorney gives to the client based upon those facts, as well as communications between attorneys that reflect client-supplied information. We have withheld information from the responsive records, including confidential communications between OGC and the Office of the White House Counsel, internal, confidential communications between OGC attorneys and client agencies, and other records reflecting the advice of counsel with regard to legal matters.

As we note in our appeal:

The privilege properly applies only to communications created in the context of an actual attorney-client relationship, and not simply whenever an agency communicates with another entity composed of lawyers. Indeed, the privilege “must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.”‘ Quite simply, the White House Counsel’s Office does not provide legal services to USDA (or to other agencies), but rather provides legal assistance to the President and the White House staff in their official capacities. USDA has not identified any facts or cited any legal authority that suggests that an attorney-client relationship exists between the agency and the White House Counsel’s Office. (emphasis added)

Documents:

November 26, 2013 FOIA Request

February 26, 2014 USDA Production Letter

March 25, 2014 USDA Appeal WH Equities by CauseOfAction

February 27, 2014 USDA Production WH Equities by CauseOfAction

Washington Free Beacon: Report: White House Review Hindering FOIA Releases

Read the full story: Washington Free Beacon

FOIA documents obtained by Cause of Action show White House reviews delayed responses to investigative journalists, watchdog groups, and even congressional investigations.

 

One White House review delayed response to a FOIA request by a Los Angeles Times reporter by at least two years.

 

The study, based on records obtained from four federal agencies, found at least 18 FOIA requests were sent to the White House for review between 2012 and 2013.

The Michael Savage Show: Discussing White House Equities

On March 20, 2014, The Michael Savage Show discussed our Sunshine Week Report. Click here to read the report.