Obama ad­min­is­tra­tion cen­sors and slows data, agencies’ work­ers say

Memo clashes with vows of trans­parency

The Washington Times Weekly - - Politics - BY JEF­FREY SCOTT SHAPIRO

Though Pres­i­dent Obama vowed to run the most trans­par­ent ad­min­is­tra­tion in his­tory, his White House has qui­etly em­pow­ered it­self to cen­sor or de­lay the re­lease of in­for­ma­tion in ways that not even Richard Nixon en­vi­sioned dur­ing the Water­gate scan­dal, ac­cord­ing to federal work­ers on the front lines of pro­cess­ing open records re­quests.

The work­ers, who spoke to The Wash­ing­ton Times only on the con­di­tion of anonymity for fear of reprisal, said that an April 15, 2009, memo from White House Coun­sel Gre­gory Craig to all federal agencies has slowed, and in some cases nixed, the pub­lic re­lease of govern­ment documents that would have been re­leased un­der prior ad­min­is­tra­tions.

It also has given the White House the abil­ity to track in real time who is ask­ing for deroga­tory in­for­ma­tion about the Obama ad­min­is­tra­tion, the work­ers said.

Mr. Craig’s memo in­structed federal agencies that they no longer could re­lease un­der the Free­dom of In­for­ma­tion Act documents that con­tained “White House eq­ui­ties” — es­sen­tially any in­for­ma­tion in­volv­ing or ref­er­enc­ing com­mu­ni­ca­tions with the White House — with­out first clear­ing it with pres­i­den­tial at­tor­neys.

Be­cause the White House is not a federal agency, it is ex­empt un­der the FOIA law and, as a mat­ter of gen­eral prin­ci­ple, is not sup­posed to in­ter­fere with agency re­views of FOIA re­quests or the re­lease of federal agency

White House ap­proval

But the memo — which first sur­faced about a year ago — has been in­ter­preted by agencies as re­quir­ing an ex­tra layer of re­view for “any­thing that could em­bar­rass the White House,” said one long­time FOIA of­fi­cer at a federal agency.

Added a sec­ond FOIA of­fi­cer who worked in the Bush and Obama ad­min­is­tra­tions: “Un­der the Obama ad­min­is­tra­tion, I am per­son­ally aware of mul­ti­ple cases [in­clud­ing those in lit­i­ga­tion] in which records were sent to the White House sim­ply be­cause they dealt with a po­lit­i­cally hot topic. The records did not orig­i­nate from or even men­tion the White House.”

Such sweep­ing re­views were never re­quired dur­ing the first five decades of the law’s ex­is­tence, and the new in­struc­tions have had a chill­ing ef­fect on what federal agencies have been will­ing to re­lease to the pub­lic, the work­ers said.

“If it sounds vague, it’s be­cause it was,” one FOIA of­fi­cer said. “Con­gress­man Dar­rell Issa once com­mented that the White House was keep­ing a Nixo­nian list of FOIA re­questers and if you think about it, it’s ex­actly that. They not only want to know what is sent out from the govern­ment, but also who’s do­ing the ask­ing.”

Mr. Issa, chair­man of the House Over­sight and Govern­ment Re­form Com­mit­tee, told The Times that the White House’s use of the eq­ui­ties pol­icy to com­man­deer federal agency FOIA re­quests was il­le­git­i­mate.

“When the White House puts it­self in the role of in­for­ma­tion gate­keeper, they’re politi­ciz­ing a process that is gov­erned by the law and agency rules,” Mr. Issa said. “Courts have rec­og­nized that some in­ter­nal White House con­ver­sa­tions de­serve pro­tec­tion from dis­clo­sure, but their claims that they can hide in­ter­ac­tions with pub­lic agencies are il­le­git­i­mate.”

White House of­fi­cials de­clined to speak about the di­rec­tive or how it has im­peded the re­lease of in­for­ma­tion, say­ing only that the memo “speaks for it­self” and that its at­tor­neys want to re­view only in­for­ma­tion that af­fects the White House or the pres­i­dent.

White House spokesman Matthew Lehrich told The Times via email, “It’s sim­ply false to say that agencies con­sult the White House on all FOIAs. As has long been the prac­tice across ad­min­is­tra­tions of both par­ties, agencies con­sult the White House as a cour­tesy when White House eq­ui­ties are im­pli­cated.”

When The Times called Mr. Lehrich and asked him to clar­ify the pol­icy by defin­ing the phrase “White House eq­ui­ties,” he de­murred. “I’m go­ing to let the memo speak for it­self and wish you a good day,” he said.

ACLU says ‘very trou­bling’

Open-govern­ment ad­vo­cates said they had not heard of the memo — even though it first sur­faced in me­dia re­ports a year ago — and were wor­ried about its im­pact on the daily flow of in­for­ma­tion Congress in­tended to make pub­lic when it passed the land­mark FOIA law in 1966.

“In our ex­pe­ri­ence, the White House gen­er­ally gets in­volved in Free­dom of In­for­ma­tion Act re­quests in only ex­cep­tional cases,” said Alex Abdo, a staff lawyer with the Amer­i­can Civil Lib­er­ties Union that fre­quently sues to force the govern­ment to re­lease in­for­ma­tion it doesn’t want to make pub­lic. “It would be very trou­bling if the ef­fect of White House re­view of FOIA re­quests were to slow down ac­cess to in­for­ma­tion of pub­lic in­ter­est be­cause of the pos­si­bil­ity of em­bar­rass­ment.

“Congress passed FOIA to shine a light on govern­ment, not to in­su­late gov­ern­men­tal waste and mis­man­age­ment from pub­lic ac­count­abil­ity,” he said.

Anne Weis­mann, chief coun­sel of Cit­i­zens for Re­spon­si­bil­ity and Ethics in Wash­ing­ton, a non­par­ti­san watch­dog ethics group that sued to force the Obama White House to bet­ter dis­close its vis­i­tors logs, said the im­pact of the memo de­pends on how federal agencies are in­ter­pret­ing it.

“It’s hard to eval­u­ate the pol­icy if you don’t know what it means. Is this over­broad? Are they ask­ing for some­thing that is in­ap­pro­pri­ate un­der the FOIA? The real ques­tion is, how is this ap­plied,” she said. “Ob­vi­ously, if agencies use the con­sul­ta­tion process to de­lay or to pre­vent the dis­clo­sure of documents that are not ex­empt, then that is a prob­lem.”

Ad­vance re­quests sought

FOIA of­fi­cers at the federal agencies said the edict has cre­ated an additional se­ries of re­views for documents men­tion­ing the White House that did not ex­ist be­fore Mr. Obama took of­fice, and it has slowed the re­lease of in­for­ma­tion.

“Un­der the Bush ad­min­is­tra­tion, the White House would some­times want a heads-up if very sen­si­tive in­for­ma­tion had been re­quested, but they didn’t care if they heard about it af­ter documents had al­ready been sent out; FOIA re­quests were not go­ing there for ap­proval,” said one FOIA of­fi­cer. “What changed with Pres­i­dent Obama’s ad­min­is­tra­tion was that the White House wanted to see re­quests far in ad­vance, and they wanted to con­trol the tim­ing of the re­lease and what was go­ing to be re­leased.”

Mr. Craig, who left the White House in 2010, specif­i­cally said in his memo that any em­ploy­ees of federal agencies con­sid­er­ing re­leas­ing govern­ment memos or data un­der FOIA must “con­sult with the White House Coun­sel’s Of­fice on all doc­u­ment re­quests that may in­volve documents with White House eq­ui­ties.”

The term “White House eq­ui­ties” does not ap­pear any­where in the Free­dom of In­for­ma­tion Act, the land­mark law Congress en­acted to em­power cit­i­zens to re­quest and re­ceive in­for­ma­tion in a timely man­ner from govern­ment agencies.

In fact, Congress ex­plic­itly ex­empted the White House from the law, mean­ing documents specif­i­cally cre­ated by the White House were not re­quired to be re­leased. But the law left it to federal agencies to process the re­lease of all other in­for­ma­tion re­quested by cit­i­zens, even documents that men­tioned the pres­i­dent or White House of­fi­cials.

To de­fend­ers of open govern­ment, Mr. Craig’s edict stands in stark con­trast to the spirit of a Jan. 21, 2009, memo au­thored by Mr. Obama the day af­ter he took of­fice in which he vowed that his ad­min­is­tra­tion would pro­mote “an un­prece­dented level of open­ness in govern­ment.”

Be­yond Nixon

Nixon is most fa­mous for try­ing to block the re­lease of govern­ment in­for­ma­tion, in­vok­ing “ex­ec­u­tive priv­i­lege” in a failed ef­fort to block em­bar­rass­ing in­for­ma­tion from reach­ing Water­gate in­ves­ti­ga­tors.

Most pres­i­dents since — from Ron­ald Rea­gan dur­ing Iran-Con­tra to Bill Clin­ton dur­ing im­peach­ment — have in­voked ex­ec­u­tive priv­i­lege to block the nar­row re­lease of in­for­ma­tion they be­lieved im­pinged on their con­sti­tu­tional right to get pri­vate ad­vice.

But none be­fore Mr. Obama has ever en­vi­sioned a con­cept that all federal agency documents that men­tion White House com­mu­ni­ca­tions be sub­jected to a re­view by the pres­i­dent’s at­tor­neys be­fore they would be re­leased, le­gal an­a­lysts said.

Since the edict, in­for­ma­tion re­leases have slowed. By the end of 2011, the Obama ad­min­is­tra­tion faced 644,000 FOIA re­quests and a record-break­ing back­log that jumped from 70,000 to more than 83,000 dur­ing the same pe­riod. FOIA law­suits also in­creased by 28 per­cent dur­ing the ad­min­is­tra­tion’s first term.

Congress held a hear­ing last week that showed En­vi­ron­men­tal Pro­tec­tion Agency em­ploy­ees be­lieved the White House had veto power over the re­lease of FOIA ma­te­ri­als, not­ing that the agency asked White House coun­sel whether it would “con­cur” with the re­lease of documents.

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