Charles Davis' take on White House FOIA decision

From Jurist:

Charles N. Davis [Executive Director, National Freedom of Information Coalition]: "The May 19 federal appellate court decision finding that the White House's Office of Administration is not subject to the Freedom of Information Act is an act of legal finery in bad need of a legislative fix.

Indeed, the court's decision is but the latest example of how crabbed judicial interpretation of the Act has restricted its ambit even as the digital communications of the era bedevil a law created in the days of manila folders and Smith-Corona typewriters.

In upholding a ruling last year by a federal judge, the appeals court found that the White House does not have to make public internal documents examining the potential disappearance of emails during the Bush administration.

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White House Office of Administration not subject to FOIA

In a lawsuit brought by Citizens for Responsibility and Ethics in Washington, the U.S. Court of Appeals for the D.C. Circuit ruled that the White House Office of Administration is not required to respond to FOIA requests, Politico reported. The group was seeking information about "an archiving failure which allegedly resulted in millions of White House e-mail messages being misfiled or even lost."

The White House's Office of Administration does not have to respond to requests made under the Freedom of Information Act, the U.S. Court of Appeals for the D.C. Circuit ruled in a 3-0 decision this morning.

"Because nothing in the record indicates that [the Office of Administration] 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," Judge Thomas Griffith wrote in an opinion joined by Judges David Sentelle and Raymond Randolph.

The setback for transparency advocates came in a lawsuit brought by Citizens for Responsibility and Ethics in Washington seeking information about an archiving failure which allegedly resulted in millions of White House e-mail messages being misfiled or even lost.

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Looming test for Obama

The Obama administration has not yet revealed whether it supports a Congressional bill that would limit its ability to stop a lawsuit through state secrets claims, NPR reported. Vice President Joe Bident co-sponsored a similar bill last year in the Senate.

President Obama came to the White House promising a new era of openness in government. On his first full day in office he said, "The way to make government responsible is to hold it accountable, and the way to make government accountable is to make it transparent." Now, some activists say, he has not done enough to keep that promise on the national security front.

A major test of the Obama administration's openness on national security issues is coming on Thursday. The Justice Department faces a court-imposed deadline to say whether it will release some controversial classified memos from the Bush administration.

In an interview last week on CBS, Attorney General Eric Holder told Katie Couric, "This is a very transparent administration. This is going to be a very transparent Justice Department, but I'm not going to sacrifice the safety of the American people or our ability to protect the American homeland, and that is first and foremost."

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'Secrecy is for losers'

Newsweek's Jonathan Alter looks back at the history of White House secrecy as openness morphs from "geeky" to "hip." He calls for a mandate that all of the government's private sector contracts be made public, which he says will lead to competitors racing to "convince the government they can do the same things cheaper."

For a long time now, there's been too much secrecy in this city." Those were the most important words President Obama spoke on his first full day in office. Obama then signed executive orders to shift the balance back toward openness in government. At least in theory, the burden of proof will move from those who would release information to those who would classify it. It's significant Obama led off this way. He went right after not just George W. Bush and Dick Cheney, but an eternal bureaucratic impulse. Will Obama's emphasis on discipline and control eventually lead him to share that impulse? We'll see.

Thomas Jefferson argued that "information is the currency of democracy," and for generations peacetime America respected the principle. Believing, as Secretary of State Henry Stimson did, that "gentlemen don't read other gentlemen's mail," the nation chose not to even have an intelligence service until World War II. Then came the Atomic Energy Act of 1946 and the National Security Act of 1947, which essentially said that a certain constantly expanding category of information was "born classified." That means no formal process for assessing if something should be secret or not—just an officious bureaucrat with a big stamp.

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White House Office of Administration Not Subject to FOIA...

The White House Office of Administration is not required to turn over records about a trove of possibly missing e-mails, a federal judge ruled Monday.

The ruling by U.S. District Judge Colleen Kollar-Kotelly found the agency does not have "substantial independent authority" so it is not subject to the Freedom of Information Act.

The decision means the White House does not have to disclose documents relating to its troubled e-mail system. That system developed problems that may have caused millions of White House e-mails to be unaccounted for.

The watchdog organization Citizens for Responsibility and Ethics in Washington had sued under FOIA. The group expressed disappointment in the ruling and said it is appealing the decision.

"The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails," said Melanie Sloan, the organization's executive director.

In January, the White House said it cannot rule out that it may have lost certain e-mails. The possibly lost e-mails are from a period in which the United States decided to go to war with Iraq, White House officials leaked the identity of CIA officer Valerie Plame and the Justice Department started a criminal investigation into who leaked the information.

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