A federal District Court judge has agreed to allow "very limited discovery" to answer whether the OA should be considered an agency and thus subject to FOIA requests.
A federal judge’s decision on Feb. 11 to allow an ethics advocacy group suing the White House to examine the workings of the Office of Administration (OA) to help determine its status as a federal agency could have repercussions in the ongoing battle over millions of White House e-mail messages that the group alleges are missing.
The Feb. 11 court order came as part of ongoing litigation filed in U.S. federal district court by Citizens for Responsibility and Ethics in Washington (CREW) and the Bush administration over the group's Freedom of Information Act request for records regarding the Executive Office of the President’s (EOP) e-mail system.
The administration has argued that OA is not subject to Freedom of information Act (FOIA) requests because it solely advises and assists the president and therefore should not be considered an agency.
In her decision to allow for “very limited" discovery for both the OA and CREW, District Court Judge Colleen Kollar-Kotelly noted that the definition of an agency is not meant to cover the president’s immediate staff or the EOP units whose sole job is to assist the president.
However, Kollar-Kotelly also wrote that although the language that established OA was specific and lacked ambiguity, the court would allow limited discovery out of an “abundance of caution.”
The judge wrote that the question was whether OA acts with “the type of substantial independent authority” that has led to the Office of Science and Technology, Council on Environmental Quality and the Office of Management and Budget to be legally considered as federal agencies, and therefore subject to FOIA requests.
CREW contends that its private sources have detailed extensive documentation of problems with EOP's e-mail archive system.
In a separate but related court case, CREW and The George Washington University’s National Security Archive sued the White House last September for allegedly failing to archive millions of e-mail messages from 2003 to 2005 and not living up to its obligations under the Presidential Record Act and the Federal Records Act.
“Obviously the two cases are related and any discovery we get in our FOIA lawsuit against OA is likely to impact our litigation strategy in our lawsuit against the EOP brought under the Federal Records Act,” said Anne Weismann, CREW’s chief counsel.
A White House spokeswoman said the administration would comply with the order, but said "the court granted very limited 'jurisdictional' discovery on a threshold legal question."
"Our position remains that OA is not an agency for purposes of FOIA, because it lacks substantial independent authority," said Elizabeth Chervenak, a White House spokewoman. "Its sole purpose is to assist the president by providing administrative support and services throughout the Executive Office of the President."
Kollar-Kelley ordered the two sides to draft a joint discovery plan by Feb. 21. The “very limited discovery” process will last for 45 days through March 28.