The White House is removing a federal regulation that subjects its Office of Administration to the Freedom of Information Act, making official a policy under Presidents Bush and Obama to reject requests for records to that office.
So, there’s that: another agency within the government that won’t respond to FOIA requests. I mean, many don’t, at least not until they’re successfully sued. Others play the waiting game, the “we can’t find it” game and the “fine, but it’ll cost you” game. But this office will simply play the “we don’t have to” game.
Most of the White House is off-limits to FOIA requests, with various court decisions in its favor shoring up the request denials. But the Office of Administration was different… or was up until recently.
Unlike other offices within the White House, which were always exempt from the Freedom of Information Act, the Office of Administration responded to FOIA requests for 30 years. Until the Obama administration, watchdog groups on the left and the right used records from the office to shed light on how the White House works.
Obama may have pressed the kill switch, but this slide towards opacity started back during the previous presidency — also no fan of government transparency. A lawsuit over 22 million emails led Bush’s administration to exercise its option to opt out of FOIA responsiveness and a 2009 court ruling upheld the Office’s decision. In the end, the Office of Administration is still charged with archiving presidential emails, but it doesn’t have to release them until five years after the current president has left office.
The administration’s ironic decision to eliminate sunshine during Sunshine Week is explained in a notice at the Federal Register.
This action is being taken in order to align Office of Administration policy with well-settled legal interpretations of the Office of Administration’s status under Federal law and Executive Orders, including the Freedom of Information Act, the Privacy Act of 1974, and Executive Order 13526. The Office of Administration, as an entity whose sole function is to advise and assist the President of the United States, is not an agency under the Freedom of Information Act or the Privacy Act of 1974, nor does its implementation of Executive Order 13526 affect members of the public. Accordingly, the provisions of the Code of Federal Regulations to be removed are without legal effect.
All well and good, but it would be refreshing to see an agency opt in to greater transparency, rather than reverting to the default opacity setting. And then there’s the issue of self-governance. Give a government body the power to set its own FOIA rules and you should expect nothing less than more secrecy. As Rick Blum of Sunshine in Government points out, this is a problem.
“I think what we’ve all learned in the last few weeks is the person who creates a record — whether it’s running a program or writing an e-mail — is the one who gets to decide whether it’s an official record,” Blum said. “And there ought to be another set of eyes on that.”
At the very least, it’s a conflict of interest. When one side wants less transparency and has the unchallenged power to make that decision, the public — and its right to know — goes completely unrepresented.