- The Washington Times - Monday, June 30, 2014

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 documents, legal analysts say.

White House approval

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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.”

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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.

While questioning EPA Administrator Gina McCarthy, Mr. Issa threatened during that hearing to hold the agency in contempt for not turning over subpoenaed documents that demonstrate a pattern of White House intervention.

“This investigation has everything to do with White House interference with the discovery process,” Mr. Issa told her. “When we issue a subpoena, to then go into a series of negotiations, what’s going to be redacted and so on with people at the White House, that is now part of the subpoena request.”

Ms. McCarthy responded, “Mr. Chairman, this is a long-standing practice.”

Mr. Issa fired back by saying, “Practices are written in the Constitution, you do not — there is no precedent for this — and quite frankly, the long-standing practice that you speak of is a long-standing practice that I inherited because for two years, the minority [Democratic Party], when they were in the majority, did no oversight.”

Information slowing

Other lawmakers have made similar inquiries about why the release of information has slowed under Mr. Obama.

A Nov. 9, 2010, letter from Treasury Department Inspector General Eric M. Thorson to Sen. Chuck Grassley, Iowa Republican, revealed that investigators in the department confirmed that the new layer of review for White House equities was affecting the release of public information under FOIA.

To address the delays, Mr. Thorson’s office attached a report citing reasons such as “addressing the equities meant to coordinate with other offices having an interest in the requested material” and noted that “White House equities” were involved “when a member of the White House staff was a recipient or commenter in an email chain.”

Cause of Action, a government ethics group in Washington that uncovered the Craig memo from a federal whistleblower, said the White House should not intervene in FOIA decisions.

“The very people who are shielded from FOIA are now in charge of reviewing FOIA requests being sent to federal agencies,” said Daniel Epstein, the group’s executive director. “There’s a huge risk that the White House is influencing FOIA decisions of other federal agencies, assessing documents it otherwise may not have seen and is interjecting itself into the FOIA process, which is bad for transparency.”

Lanny Davis, an attorney for the Clinton White House, said he, too, doesn’t believe the White House “should generally be involved in any decisions to comply with FOIA.”

“Attorneys who have filed FOIA requests under both Republican and Democratic administrations almost all agree that FOIA is a statute too often seen by some in government as a threat to be resisted,” said Mr. Davis, who helped Mr. Clinton navigate a series of scandals in the 1990s. “I wish the White House — any White House — would order agencies to fully and rapidly comply, rather than drag their feet.”

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

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

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