- The Washington Times - Monday, August 18, 2014

The administration that vowed to be the most transparent in history now must defend itself against a federal lawsuit accusing it of thwarting the release of public information. It’s a case that could reveal just how much politics influences the processing of Freedom of Information Act requests, especially when such releases could embarrass the president.

The civic watchdog group Cause of Action on Monday sued the Obama administration, claiming that presidential attorneys have interfered improperly in the release of public documents under the landmark FOIA law in an effort to curb the release of derogatory information about the White House.

The lawsuit, filed in U.S. District Court for the District of Columbia by the nonpartisan Cause of Action, names 12 federal agencies that the group says slowed the release of documents so officials could consult with White House attorneys under a review process established in spring 2009. FOIA analysts say this practice never occurred in prior administrations.

The process gave White House officials review authority over documents that mentioned the White House or presidential aides, and was based on an April 15, 2009, memo by White House Counsel Gregory Craig that instructed all federal agencies to consult with President Obama’s attorneys on the release of documents containing “White House equities.”

The lawsuit contends the term “White House equities” was never mentioned in the FOIA law and has been used to delay the legitimate release of public information.

“The White House is demanding access to records and otherwise influencing agencies’ FOIA obligations to produce responsive documents in a manner that is not countenanced by the law,” Cause of Action argued in its lawsuit. “Indeed, the ‘most transparent administration in history’ has injected itself into a process (FOIA) presumably to self-regulate what agency records are produced to the public.”

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The lawsuit references a June 30 article in The Washington Times that reported on the impact of the “White House equities” memo and quoted FOIA officers at federal agencies who said the review process had been used to prevent the release of information embarrassing to the Obama administration.

Cause of Action Executive Director Daniel Epstein said in an interview that the organization sued federal agencies that refused to disclose communications related to documents that the agencies had shared with the White House. Although the initial complaint was filed under FOIA, he said, other claims could be added.

“We are simply suing because we want the documents in these agencies that they have failed to produce,” he said. “There is currently only one count in that there is a violation of FOIA, but that is not to say that we may not later amend the complaint if we think other issues arise.

“We are statutorily entitled to documents that have not been produced,” he added.

The White House, in a statement Sunday to The Washington Post, defended its record on openness, citing what it said was a huge number of FOIA requests processed since Mr. Obama took office.

The president is “committed to a transparent and open government and has taken unprecedented steps to ensure that members of the public have access to information,” the statement said, noting that administration agencies and departments processed almost 680,000 FOIA requests last year, the third consecutive year of processing increases. The White House also has argued, despite its critics, that it is simply following precedent set by previous administrations on FOIA requests in which “White House equities” are involved.

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Congressional interest?

Anne Weismann, chief counsel of Citizens for Responsibility and Ethics in Washington, a nonpartisan watchdog group that has sued the Obama administration over White House visitor logs, said the Cause of Action lawsuit is a “bread-and-butter FOIA case” but could force Congress to take greater notice.

“In this case, the lawsuit is trying to compel documents that could explain how the ‘White House equities’ policy is being implemented,” she said. “If it turns out that the policy is being used to intentionally slow the process, … it could lead to congressional oversight.”

Cause of Action sent 22 FOIA requests in 2013 and 2014 to various federal agencies concerning their reviews of records by the Office of White House Counsel and released a report in April about “White House equities.”

Because the White House is exempt from FOIA, White House review of such requests occurs only in rare circumstances in which a document originated in the White House.

One FOIA officer who worked in the George W. Bush and Obama administrations claimed to be “personally aware of multiple cases” 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,” the officer said in an interview.

Another FOIA officer referred to the policy as “Nixonian,” saying the Obama White House “not only wants to know what is sent out from the government, but also who’s doing the asking.”

‘Tool of secrecy’

David Cuillier, president of the Society of Professional Journalists, said the lawsuit is important but does not come as a surprise.

“It’s one of many lawsuits the White House has had to face and continues to face over the years, and rightfully so,” Mr. Cuillier said. “It should face this lawsuit because our government is out of control when it comes to excessive secrecy. They’re using the FOIA as a tool of secrecy, not of openness.”

On July 8, the journalists group filed a letter urging President Obama to halt excessive management over information control. The letter targets Mr. Obama’s media policies.

“We consider these restrictions a form of censorship — an attempt to control what the public is allowed to see and hear,” the letter said.

Ginger McCall, director for the Electronic Privacy Information Center Open Government Project, said public pressure could be applied usefully to the Justice Department, which is reviewing agency FOIA policy inconsistencies.

The Justice Department “has been tasked with crafting a uniform FOIA rule for all federal agencies,” she said. “Therefore, they could easily add language to their new, proposed uniform standards that prohibit the White House from interfering this way.”

Mr. Epstein said he believes the White House equities policy is inconsistent with Mr. Obama’s promises of transparency.

“The president has interjected himself into the FOIA process, and record releases are being delayed as a result of that,” he said. “It violates FOIA because these documents should have been forthcoming. It violates the spirit of FOIA because transparency should not be delayed because of something the president or his White House staff does.”

• Jeffrey Scott Shapiro can be reached at jshapiro@washingtontimes.com.

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