- The Washington Times - Tuesday, December 23, 2008

President-elect Barack Obama has promised an open transition but, federal open records laws do not apply to his transition team - meaning deliberations, meetings with interest groups or even e-mail communications between his staffers and Illinois Gov. Rod R. Blagojevich are only as open as Mr. Obama wants them to be.

In the case of those communications, the public will learn Tuesday how forthcoming Mr. Obama is - his campaign has promised to release its report on contacts with Mr. Blagojevich, who was arrested Dec. 9 on charges of trying to barter Mr. Obama’s vacant Senate seat.

Mr. Obama has said the report clears his staffers of any wrongdoing. According to published reports, transition team members had pro forma contacts but, as Mr. Obama has asserted, did not engage in “pay-to-play” negotiations.

“We have a report. It’s been ready for release for a week. We’ve held off at the request of the U.S. Attorney’s Office and that continues to be the case, though we expect to be able to release the report shortly,” transition spokesman Nick Shapiro said.

The Associated Press reported that incoming White House Chief of Staff Rahm Emanuel contacted Mr. Blagojevich’s office about the appointment, according to a source close to the governor who requested anonymity because the person is not authorized to speak on the matter. Mr. Blagojevich thought Mr. Emanuel was advocating Obama friend Valerie Jarrett for the Senate seat so that he would not have to compete with her for Mr. Obama’s attention in the White House, the source said.

It’s not known whether any of those discussions are included in tapes that investigators began making of Mr. Blagojevich’s conversations in October. An official familiar with Mr. Obama’s internal review said the president-elect’s team wrote its report without having access to transcripts of the FBI’s taped conversations, AP reported.

After Mr. Blagojevich was arrested and an FBI affidavit reported contacts between the governor’s office and an unnamed transition aide, The Washington Times, Politico and other news organizations submitted requests for information from the transition team that would show contacts among transition staffers and Mr. Blagojevich or his aides.

The transition team sent The Times a response from the U.S. General Services Administration (GSA) saying it is exempt from such requests.

“Presidential Transition Team records are not subject to the Freedom of Information Act because the PTT does not meet the definition of an ‘agency’ as defined in [U.S. law]. The FOIA only applies to entities that satisfy the definition of agency, which is typically executive branch agencies and a few other similar entities,” the GSA explanation said.

Mr. Obama’s transition is partly funded by taxpayer dollars, and government watchdog groups have called on Mr. Obama to release any records of contacts, according to Politico.com.

But Freedom of Information Act requests don’t apply, according to lawyers who follow FOIA cases, saying that the law covers executive agencies or specific entities named by Congress, such as Amtrak, but not the White House, Congress, the courts or nonprofits such as the Presidential Transition Team.

“It’s kind of ironic because I think the president-elect has stated publicly that he’s going to push transparency,” said Scott A. Hodes, a FOIA lawyer, though he said there are other FOIA issues open-government advocates should tackle before worrying about the transition.

“When it comes to FOIA issues, a lot of it is priorities - which stuff you’re going to prioritize as first - and I don’t think anybody’s going to make a high priority of this,” said Mr. Hodes, who blogs about FOIA issues at www.theFOIAblog.typepad.com.

Open-government advocates have widely praised Mr. Obama for his team’s transparency so far. He has released a list of donors to the transition and has asked his staffers to make a public notice of any meetings they have with outside interest groups.

There have been some court cases. Thomas M. Susman, who has been involved in freedom of information law for 40 years and is the director of the American Bar Association’s government affairs office, said one case involved a request for transition notebooks a government official took into the government. Mr. Susman said the court ruled the notebooks were not agency records.

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