FOIA ruling raises questions

A federal court decision last week answered one legal question about public records and raised new ones. A federal judge ruled that a White House office that provides information technology and administrative support is not an agency and, therefore, does not have to respond to Freedom of Information Act (FOIA) requests. The ruling is under appeal.

Since its inception during the Carter administration, the Executive Office of the President’s Office of Administration has straddled a gray area: Is it a federal agency or it is a presidential adviser? The agency has a history of receiving FOIA requests, but until last week the courts had not issued a formal ruling on whether the office is a federal agency.

The Bush administration argued in federal court that the office is not an agency and, therefore, is under no obligation to answer FOIA requests, and U.S. District Judge Colleen Kollar-Kotelly agreed with the administration. A lawsuit about the White House’s e-mail archiving practices raised the question.

Frank Reeder, who led the office from 1995 to 1997 during the Clinton administration, said the office is an “organizational anomaly,” sometimes acting like an agency and other times providing support for the administration. However, most observers seem to agree that the judge’s ruling would not apply to other organizations in the Executive Office of the President.

Glenn Schlarman, who worked at the Office of Management and Budget from 1992 to 2006, said he saw the office go back and forth many times on the issue.

But now that a judge has decided that it is not an agency, documents from an internal investigation that detailed the White House’s e-mail archiving practices — the subject of ongoing litigation — will be considered presidential records.

FOIA requests apply to federal agencies that are bound by the Federal Records Act. The Presidential Records Act mandates that records be handed over to the National Archives and Records Administration at the end of a president’s term of office. At the earliest, the presidential act allows for public access to presidential records through FOIA five years after a president leaves office.

Groups suing the White House for violating federal records laws by allegedly losing millions of e-mail records from 2003 to 2005 said they hope to wrap up litigation before Jan. 20, 2009, when Bush will hand over the keys to the White House to his successor.  

About the Author

Ben Bain is a reporter for Federal Computer Week.

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