The White House is exempting an office from compliance with the Freedom of Information Act, angering open-government advocates, who accuse President Barack Obama of not living up to his pledge to run the “most transparent administration in history.”
The White House said Tuesday that the move to exclude the White House Office of Administration from the federal open-access law reflected a court ruling that predated the Obama administration and wouldn’t have any effect on its commitment to open records and its compliance with requests for records.
“This is a matter of just cleaning up the records that are on the books,” White House Press Secretary Josh Earnest said. “It has no impact at all on the policy that we had maintained from the beginning to comply with the Freedom of Information Act, when it’s appropriate.”
The move, announced Tuesday in the Federal Register, came as news organizations marked Sunshine Week to showcase the public’s right to know, and it drew sharp criticism from advocates who already give the administration poor marks for news-media access.
“This is another example of the White House position avoiding transparency,” said John Wonderlich, policy director of the nonprofit Sunlight Foundation. “Instead of creating more and better access to information, it’s trying to control it.”
“The president has routinely failed to deliver on his promise,” said Sen. John Cornyn, R-Texas, who’s proposed a law that would reduce the use of exemptions to withhold information from the public.
Earnest said his office wasn’t involved in the timing of the announcement but that it was “entirely consistent” with policy that had been in place for several years.
A U.S. district judge found in 2008 that the Office of Administration was not subject to the Freedom of Information Act after the watchdog group Citizens for Responsibility and Ethics in Washington sued it over missing White House email. The decision was upheld by a federal appeals court in 2009, which found the office was not an agency under the records act because it largely did only “operational and administrative support for the president and his staff” and didn’t have “substantial independent authority.”
The watchdog group criticized the ruling at the time and interim executive director Anne Weismann said Tuesday that the decision to shield the office “makes mockery of the administration’s commitment to transparency, especially given that it’s Sunshine Week.”
Weisman accused the White House of reversing a decades-long practice of opening the office’s files to the public, saying, “Apparently they have abandoned even the appearance of transparency.”
However, Steven Aftergood, who directs the Federation of American Scientists Project on Government Secrecy and is an expert on – and prominent critic of – government secrecy, said Tuesday that he wasn’t concerned about the change because it didn’t represent an actual change in the policy that had been effect since the court ruling.
But, he said, the action is a reminder that FOIA has “limited reach even when it functions properly.” He pointed out, for example, that the National Security Council – another White House entity – has been exempt from FOIA since 1995. “I used to request records from NSC with some frequency. In fact, I still do, but they are under no legal obligation to comply, and they rarely do,” he said.
Earnest noted the Office of Administration has been responsible for voluntarily releasing White House visitor logs, as well as a list of White House employees and their salaries, and will continue to do so.
The change “has no bearing on the Office of Administration and the role that they do play in ensuring that the administration is the most transparent administration in history,” Earnest said.
The nonprofit Center for Effective Government found in a recent grading of 15 federal agencies that receive the most public-information requests that eight had improved their records over the past year but that none had earned an A.
Earnest said the administration had “a lot to brag about when it comes to our responsiveness to Freedom of Information Act requests,” citing a Department of Justice survey that found that the administration had processed 647,142 FOIA requests last year and that more than 91 percent resulted in the release of some or all of the requested records.