CREW ruling incorrectly limits FOIA reach Commentary
CREW ruling incorrectly limits FOIA reach
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Anne Weismann [Chief Counsel, Citizens for Responsibility and Ethics in Washington] "In CREW v. Office of Administration, U.S. District Court Judge Colleen Kollar-Kotelly issued an opinion on June 16, 2008, dismissing CREW's complaint on the ground that the Office of Administration (OA), a component of the Executive Office of the President (EOP), is not an agency and therefore not subject to the Freedom of Information Act (FOIA). Although Judge Kollar-Kotelly found the agency question to be a close one, with no D.C. Circuit precedent directly on point, she concluded nevertheless that the OA is not an agency because it has no substantial independent authority separate from that which the president has given it through executive orders.

This decision is significant and deeply troubling on a number of levels. First, as a direct consequence of the ruling, CREW and the public are denied access to a wealth of documentation the OA prepared regarding the millions of e-mails mysteriously missing from White House servers during a two and one-half year period. The OA first discovered that a huge volume of e-mails were missing in October 2005, and prepared hundreds of pages of materials documenting the scope and dimensions of the problem as well as a proposed plan for recovering the missing e-mail. The White House never implemented that plan or implemented an effective electronic record keeping system that would guard against this kind of massive data loss. The court's order sanctions continued secrecy at the White House, at a huge cost to the public.

The decision is also troubling as a matter of law, given the actual functions that the OA performs. The OA provides administrative support to the EOP, including all those EOP components that are agencies and are subject to the FOIA, such as the Office of Management and Budget and the Council on Environmental Quality. In this regard, the OA is no different than agencies like the General Services Administration or agency components that provide technical support, such as those that virtually every federal agency has. Yet simply because the OA is housed within the EOP, one district court judge has now concluded that its records are off-limits to the public.

Congress enacted the FOIA to give the public a means of finding out what its government was up to. Recognizing the constitutional concerns of subjecting a president to the FOIA, Congress exempted the president from the FOIA's reach. But Congress amended the FOIA in 1974 expressly to include the EOP. Since that time, the courts have recognized that some EOP components are the functional equivalent of the president, such that subjecting them to the FOIA would raise the same constitutional concerns as would subjecting the president to the FOIA. Missing from the court's decision here, however, is any explanation of how subjecting the OA — an EOP component that serves all but the president — to the FOIA would raise any constitutional concerns whatsoever. The short answer is that it would not and that, in a nutshell, is the fatal flaw in the court's decision."

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