The White House is set to announce Tuesday that it will exempt its Office of Administration from federal rules requiring it to comply with Freedom of Information Act requests, allowing the record-keeping agency to reject transparency asks.
Formalizing a de facto policy that was upheld under previous presidencies, the move came in the form of a "final rule," which means it will be codified without public comment. The action effectively eliminates any formal process for the public to request that the White House voluntarily release records through a system known as "discretionary disclosure."
The Office of Administration is part of the Executive Office of the President, which is federally required to hand over certain documents when they are requested. Although it complied with those rules for 30 years, the Office of Administration generally ceased responding to FOIA requests under President George W. Bush and has continued to ignore them under President Barack Obama.
Although the rule stems from a years-long lawsuit, filed before Obama took office in 2008, the announcement comes at a particularly ironic time—the start of Sunshine Week, during which civil liberties watchdogs promote accountability and push for the government to be open in disclosing information. Monday was National Freedom of Information Act Day.
"It's a little tone deaf to do this on Sunshine Week, even if it's an administrative housecleaning," Rick Blum, coordinator of the Sunshine in Government initiative for the Reporters Committee for Freedom of the Press, told USA Today.
"[T]he systems created to give citizens information about their government are badly broken and getting worse all the time."
—Greg Pruitt, Associated Press
Among the records that the Office of Administration keeps are White House emails. In 2007, the government watchdog group Center for Responsibility and Ethics in Washington (CREW) requested documents from the office to look into a cache of up to 22 million emails missing from White House servers. The center's request was denied.
CREW filed a lawsuit against the office, but that claim and a lengthy appeal were overturned by a 2009 court ruling which found that the Office of Administration was not an "agency" as defined by FOIA, and thus lacked independent authority.
White House emails are not required to be given out under FOIA, the appeals court ruled. Instead, they had to be released under the Presidential Records Act—but not until five or more years after the end of the administration.
A signature promise of Obama's presidential campaign was to create the "most transparent" administration in history. On Tuesday, the White House announced the rule change by stating, "Generally speaking, the Administration has gone to great lengths to release more information on the front end so that individuals do not have to file a FOIA to get access to government data and other information."
CREW interim executive director and senior counsel Anne Weissmann told The Hill that the move by the White House "makes mockery of that commitment [to transparency], especially given that it's Sunshine Week. The White House has reversed a decades long practice of opening the files of OA to the public. Apparently they have abandoned even the appearance of transparency."
On Friday, Associated Press president Gary Pruitt criticized the government for increasingly undermining FOIA and other right-to-know laws. "[T]he systems created to give citizens information about their government are badly broken and getting worse all the time," Pruitt wrote in a statement.
"As the president said, the United States should not withhold or censor government files merely because they might be embarrassing," Pruitt continued. "But it happens anyway."
Disapproval of the rule change came from across the political aisle. Tom Fitton of the conservative Judicial Watch told USA Today, "This is an office that operated under the FOIA for 30 years, and when it became politically inconvenient, they decided they weren't subject to the Freedom of Information Act any more."
Rick Blum of Freedom of the Press told USA Today that the bigger issue is the fact that a White House office was responsible for its own record-keeping in the first place.
"I think what we've all learned in 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. That's the essential problem."