Dan Epstein discusses how White House, Treasury politicize FOIA
06/25/2013
06/24/2013
White House and Treasury Department Politicize FOIA
In 2010, the Associated Press (AP) uncovered that the Department of Homeland Security (DHS) was blatantly politicizing the Freedom of Information Act (FOIA) process by having senior political appointees review requests. Additionally, it was revealed that documents implicating “White House equities” had been sent by DHS to the White House Counsel’s Office for review, but what are White House equities? And who is defining the term?
In subsequent testimony before the House Committee on Oversight and Government Reform, Mary Ellen Callahan, Chief Privacy Officer for DHS, was asked about the meaning of White House equities by Rep. Jason Chaffetz:
Mr. Chaffetz. Let me read another paragraph. “Two exceptions required White House review, request to see documents about spending under the $862 billion stimulus law, and the calendars for cabinet members, those required White House review,” is that correct?
Ms. Callahan. The calendars–anything that has White House equities would require White House review. That is—-
Mr. Chaffetz. What is a White House equity? What does that mean?
Ms. Callahan. In the circumstances with the Secretary’s calendar to the extent that she was in the White House, or that was a–disclosing some sort of element. This is a typical process of referring FOIA requests to different departments. It may be their underlying records. That is a standard process throughout the—-
Mr. Chaffetz. The other part of that is under the $862 billion stimulus; is that correct? Is that part of the White House equity? It says “Two exceptions required White House review. Request to see documents about spending under the $862 billion stimulus law,” is that correct?
Ms. Callahan. That is correct.
Mr. Chaffetz. Why? Why does that require a special White House review?
Ms. Callahan. Sir, I’m the chief FOIA officer; I’m not a policy person in this area.
Mr. Chaffetz. So is that a directive that you got from the White House?
Ms. Callahan. I believe I was instructed by the Office of the Secretary to do that, and we processed it—-
Three years after the above testimony, we have confirmed that Congressman Chaffetz was right about the source of authority that required “special White House review.” In January 2009, the President issued his Executive Order on FOIA and transparency, and then Attorney General Eric Holder issued a March 2009 FOIA memo encouraging disclosure. Both of these memos were made public and lauded as standards for federal agencies. But in April 2009, a previously undisclosed memo was sent from White House Counsel’s Office to Department and Agency General Counsels, reminding them to send to the White House all records involving “White House equities” collected in response to any document request. According to FOIA attorneys at multiple federal agencies, this White House consultation policy is still in effect.
The practice of sending agency records to the White House for review is not altogether new. In 1993, for example, the Department of Justice (DOJ) instructed agencies to send “White-House-originated” records to the White House Counsel’s Office whenever located in response to FOIA requests. However, the current White House consultation policy is substantially broader in scope. First, this memo expands the types of documents being sent to the White House to include Congressional committee requests, GAO requests, and judicial subpoenas. Additionally, the documents to be referred need not “originate” from the White House, as the DOJ advised in 1993, but need only involve “White House equities,” an undefined term that could be construed to include any records in which the White House might be interested. Indeed, that is exactly the type of referral that appeared to have occurred at DHS, and which is likely still occurring throughout the Executive Branch. In sum, the White House Counsel’s office is potentially receiving and reviewing, and actually demanding access to information they previously would not have been able to review under FOIA. Cause of Action is now seeking to obtain documentary evidence of this practice via FOIA requests to multiple agencies.
The 2009 memo that Cause of Action obtained:
How the Treasury Department and the IRS Stall FOIA Requests
- Treasury’s Departmental Offices (DO) and the IRS gives extra scrutiny to FOIA requests from all media requesters, delaying the release of records and usurping the regulatory authority of FOIA officials
- 13 requests to DO were marked for sensitive review were sent to the White House for review in 2009
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. Our research found that only 7 of the 29 Inspectors General released their findings publicly, and none of those reports revealed any wrongdoing.
However, according to the Treasury Inspector General, both the Treasury’s main office, called Treasury’s Departmental Offices, as well as the IRS established formalized “sensitive review” processes in late 2009 that singled out media requesters and slowed down the FOIA process. At Treasury DO, a committee of senior Treasury officials reviewed requests deemed to be “sensitive” before career FOIA personnel were permitted to release any records. Notably, multiple government sources have confirmed that all FOIA requests submitted by the media were required to be forwarded to the review committee regardless of the content of the requested records. This discriminatory policy, which delayed the release of records and usurped the regulatory authority of FOIA officials, is all the more nefarious because it was established at a time when Americans were seeking to obtain vital information about Treasury’s response to a severe financial crisis.
At the IRS, any FOIA request submitted by “major media” would be labeled as a “sensitive case,” and sent to the Chief Disclosure Officer and the Director of Communications, Liaison, and Disclosure, who would decide if documents were “appropriately disclosed.”
Interestingly, in response to a FOIA request that Cause of action sent to the IRS, the IRS admitted internally that it had forgotten to put us in a “Sensitive Case Report.”
According to the IG report, none of the other offices within Treasury had established a “sensitive review” process or were cited as sending requests to the White House for review.
Broken Promises on Transparency Continue
The Obama Administration cannot credibly claim to be the most transparent in history when it publicly issues memos about the presumption of openness in the FOIA process, for example, but then instructs agencies in a non-public memo to refer all records with “White House equities” to the White House for review. The White House is by its nature political and it is not subject to FOIA. Thus, it should not be interfering with the FOIA process. Not only is the FOIA process significantly stalled by this White House review — a fact that agencies zealously keep secret from requesters — but it permits the White House’s political interests to trump the correct application of the FOIA, a disclosure statute whose purpose is ensure an informed citizenry. In sum, this Administration is more concerned with appearing to be transparent than with actually being transparent.
06/20/2013
Cause of Action Memos Impugn Obama Transparency Pledge
FOR IMMEDIATE RELEASE
June 20, 2013
Cause of Action Memos Impugn Obama Transparency Pledge
CoA obtains previously unreleased White House Memo detailing undisclosed FOIA policies
WASHINGTON – Cause of Action (CoA), a government accountability organization, today released a previously undisclosed copy of an April 2009 White House memo sent to all Executive Department and Agency General Counsels urging them to run all third-party requests dealing with “White House equities”– including congressional and Freedom of Information Act requests (FOIA)–through the White House Counsel’s office. This memo was sent just months after the President issued his January 2009 Executive Order on FOIA and transparency, and Attorney General Eric Holder’s March 2009 memo on FOIA—both of which were made public. According to the Department of Justice this memo is still in effect.
Additionally, CoA also obtained a previously unreleased copy of a November 2010 Treasury Inspector General report, revealing two concerning aspects of how the IRS and Treasury handle FOIA requests:
- The IRS treats “major media” requests as “special review,” therefore applying an additional layer of scrutiny and slowing down the FOIA process.
- The White House may have reviewed Treasury Department FOIA productions and claimed privileges before documents were released to the requestor.
Dan Epstein, Cause of Action’s executive director, commented on the consequences of these findings:
“We are concerned that the President’s transparency pledges and removal of the Office of Political Affairs may have all been a charade to not only politicize the Freedom of Information Act but to use the White House legal office to politicize the executive branch. The White House is not an agency subject to FOIA and should have no control over the FOIA process. The White House policy violates the intent of FOIA, which requires that federal agencies promptly respond to requests. The broad claim for documents relating to “White House equities” is unprecedented.
How are we to trust an Administration that has gone after the press and politicized the nation’s most important tool for knowing what its government is up to?”
Related Documents:
Treasury Inspector General Report
06/20/2013
FoxNews.com: Obama administration pledged transparency, but slowed document requests, memos show
Obama administration pledged transparency, but slowed document requests, memos show
By Judson Berger Published June 20, 2013
Even as the freshly minted Obama administration was pledging a “new era of open government” in 2009, officials were quietly adding new rules that had the potential to slow down public requests for documents.
Those rules, detailed in memos reviewed by FoxNews.com, could even trip up present-day efforts to dig into the IRS’ practice of targeting conservative groups. The rules detailed in the memos largely emanated from the Treasury Department and, specifically, the IRS.
“It would seem to repudiate this notion that this is going to be the most transparent government in history,” said Dan Epstein, executive director of Cause of Action, the group that first obtained the memos.
The memos follow reports about the administration’s use of private email accounts, and coincide with ongoing debate about government transparency — particularly with recent disclosures about widespread surveillance programs.
Epstein said the document request procedures are “troubling” since the media are “really concerned about the limits of government power.”
According to the documents, the Treasury Department in 2009 set up an additional review for requests involving “sensitive information,” which covered a broad range of items. The White House sometimes got involved, slowing down the process. The IRS also acknowledged having another review process for requests from “major media,” but not for requests from private individuals.
Members of the media often try to obtain documents not readily available by citing a law known as the Freedom of Information Act. The Treasury Department, though, in late 2009 erected speed bumps for some so-called FOIA requests.
The rules were detailed in a November 2010 memo and report sent from the Treasury inspector general to Sen. Charles Grassley, R-Iowa.
The documents showed the Treasury Department set up an additional “formal level of review” for requests for “sensitive information.” This category would cover everything from emails to memos to calendars to travel logs for top department officials, legal advisers, senior advisers and others.
Once a request was deemed “sensitive,” it would then go before a “review committee,” made up of officials from several Treasury offices.
Further, the document said a special report would be prepared for IRS requests from “major media.” This covers requests from traditional news media as well as bloggers, and according to the report covered information that “was likely to attract news media or congressional interest, involved large dollar amounts, or involved unique or novel issues.”
This report would then be sent to a higher-up in the division who decided whether the material should be disclosed.
The report repeatedly said that, in most cases, political appointees were not involved in these decisions, and that the agencies have no procedures to allow that.
But Epstein said these rules could cause problems as Congress and the media dig deeper into the origin of the IRS practice of singling out conservative groups for additional scrutiny.
He pointed to another memo, dated April 15, 2009, from then-White House Counsel Greg Craig that urged “executive agencies” to consult with his office “on all document requests that may involve documents with White House equities.” Craig said this pertains to everything from FOIA requests to congressional requests to subpoenas.
This practice apparently dates back to 1993. The Treasury IG memo cited this, and described the White House involvement as “minimal and limited.” However, the report also said the White House involvement “was responsible in several cases for adding a significant processing delay,” which in Treasury’s case slowed them down.
“It actually is heavily ironic in the realm of transparency,” Epstein said.
He pointed to edicts and memos early on in the first term of the administration stressing transparency. Obama issued a January 2009 directive calling for an “unprecedented level of openness.”
Attorney General Eric Holder in March 2009 directed all Executive Branch departments to use a “presumption of openness” when dealing with FOIA requests.
To that end, the administration has instituted several other transparency initiatives. It has followed through on requiring Cabinet secretaries to hold Internet town hall discussions, set up a comprehensive website to track stimulus spending, and set up a national declassification center.