- The Washington Times - Monday, May 9, 2016

The White House showed “bad faith” in how it handled an open records request for global warming data, a federal court ruled Monday, issuing yet another stinging rebuke to the administration for showing a lack of transparency.

For President Obama, who vowed to run the most transparent government in U.S. history, Judge Amit P. Mehta’s ruling granting legal discovery in an open records case — the third time this year a judge has ordered discovery — is an embarrassing black eye.

In this most recent case, the Competitive Enterprise Institute was trying to force the White House office of science and technology policy to release documents backing up Director John C. Holdren’s finding that global warming was making winters colder — a claim disputed by climate scientists.

Mr. Holdren’s staffers first said they couldn’t find many documents. They then tried to hide their release by saying the documents were all internal or were similar to what was already public.

Each of those claims turned out not to be true.

“At some point, the government’s inconsistent representations about the scope and completeness of its searches must give way to the truth-seeking function of the adversarial process, including the tools available through discovery. This case has crossed that threshold,” the judge wrote.


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Discovery is considered exceedingly rare in Freedom of Information Act cases because the government is given the benefit of the doubt in claiming it has tried to search for and release documents. But in three cases this year, judges have called the Obama administration’s efforts into question, finding severe oversights that suggest “bad faith.”

Both of the other cases involve the State Department’s handling of former Secretary Hillary Clinton’s emails — a situation that spawned dozens of lawsuits when everyone from reporters to the Republican National Committee sought to get a look at the files of the potential Democratic presidential nominee.

The latest twist in those cases came Monday when court documents said the State Department has been unable to find emails from Bryan Pagliano, the department staffer who reportedly set up and maintained Mrs. Clinton’s secret email server at her home in New York. It’s unclear whether he didn’t send any messages or whether the State Department missed them, or somehow expunged them.

In the office of science and technology policy’s case, conservative activists are trying to figure out why agency Director John P. Holdren declared in a video on the White House website that global warming was causing more severe winters. Scientists generally disagree with that finding.

The office of science and technology policy now claims it’s just Mr. Holdren’s opinion, so there is no need to correct the record or take down the video. But after the Competitive Enterprise Institute asked for documents related to his claim, the agency repeatedly botched its duty under the law to search for and provide those documents, according to Judge Mehta.

Initially the office said it found just 11 pages of documents, none of which included drafts of the director’s final conclusions. Later, the office acknowledged that it found 47 pages of drafts but tried to withhold them, claiming they were protected from release because they were seen only within the administration.

“Both of those impressions turned out to be mistaken,” Judge Mehta said.

The office of science and technology policy then said there were 52 total pages of drafts, that only one person outside the administration saw a draft and that document was similar to what the office had already produced.

“All three of those impressions also turned out to be mistaken,” Judge Mehta wrote, adding in a footnote that he was troubled by the government’s statements that misled the court.

The office of science and technology policy conducted yet another search and this time found 10 more drafts, which it says are similar to the ones found earlier. Judge Mehta said even if that’s true, it means the government has found 112 pages of drafts after initially telling the court it had none at all.

Mr. Holdren’s office declined to comment on its handling of the case because it is ongoing.

The Justice Department, which has handled all three of the open records cases in which a judge has found bad faith, also declined to comment.

Hans Bader, senior attorney at the Competitive Enterprise Institute, said they hope to use discovery to find out who else Mr. Holdren shared his conclusions with and to try to find out why the office’s process for searching its own files was broken.

More broadly, he said the fact that three judges have ordered discovery against the administration is proof that it’s falling short of Mr. Obama’s vow to run the most transparent government in American history.

“You can’t rely on these agency search requests anymore because they just habitually do these inadequate or sloppy searches and file a declaration in court to make these cases go away,” Mr. Bader said. “Nobody ever satisfies the information of any of my FOIA requests. To the extent they give me the information is because we sue.”

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