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.

The plaintiff, the estimable Citizens for Responsibility and Ethics in Washington, or CREW, had filed a lawsuit in 2007 seeking to force the Office of Administration (OA) to comply with a FOIA request for documents related to retention (or lack thereof) of e-mails between 2001 and 2005, a period that included the Iraq war.

From its inception in 1977, OA functioned consistently as an agency subject to the FOIA, adopting comprehensive FOIA regulations and processing hundreds of FOIA requests.

Then the Bush administration, in the midst of litigating a FOIA request from CREW seeking documentation of the millions of missing White House emails, decided OA no longer is an agency.

The administration had been paying attention to broader trends in the jurisprudence of FOIA, which has seen a host of judicial interpretations gradually narrowing the law's reach, and it shrewdly sensed that the law was now on its side.

Not the least of these precedents was a 1980 Supreme Court decision holding that the FOIA does not extend "to the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President."

Leaning on that decision as well as a host of more narrow lower federal court decisions, the three-judge panel was on firm legal footing in ruling that the Office of Administration's work "is directly related to the operational and administrative support of the work of the President" and his staff.

The problem with that logic nowadays is that, thanks to the seamless nature of modern governance and the very sort of electronic communication at the heart of CREW's lawsuit, such myopic focus on the "independent authority" of subagencies such as OA renders the FOIA a toothless tiger.

OA has never been the sort of close presidential adviser Congress intended to exclude from the FOIA's definition of "agency." This is a legislative fix that could be relatively easy to make, and one that is long overdue."