How the Law Really Works

Documents About Lost E-Mail Can Stay Secret
Court Sides With White House Office

By Del Quentin Wilber
Washington Post Staff Writer
Wednesday, May 20, 2009

A federal appeals court ruled yesterday that the White House does not have to make public internal documents examining the potential disappearance of e-mails during the administration of President George W. Bush. In upholding a 2008 decision by a federal judge in a lawsuit brought by a watchdog group, the appeals court found that the White House's Office of Administration is not subject to the Freedom of Information Act.

Citizens for Responsibility and Ethics in Washington (CREW) filed the suit seeking to force the White House office to comply with a 2007 request for documents related to the alleged sloppy retention of e-mails between 2001 and 2005, a period that included the lead-up to and start of the Iraq war. The group was seeking the records to get a better sense of what happened to the e-mails, said Anne Weismann, the organization's chief counsel.

The Office of Administration, which performs a variety of administrative services for the Executive Office of the President, had complied with similar requests for years. But officials changed the policy after CREW's request, arguing that the office does not exercise enough independent authority to be subject to open-records laws.

Government agencies and offices generally must do more than advise and assist the president or his immediate staff to be subject to the laws. Because the Office of Administration does not perform "tasks other than operational and administrative support for the President and his staff, we conclude that [it] lacks substantial independent authority and is therefore not an agency under FOIA," wrote Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit, who was joined in the 13-page opinion by Chief Judge David B. Sentelle and Judge A. Raymond Randolph.

CREW's executive director, Melanie Sloan, said her organization is unlikely to appeal the ruling. But she said her group and others like it recently sent a letter to the Obama administration urging it to apply freedom-of-information laws to the Office of Administration.

"Transparency and accountability start at home," Sloan said.

"This is load of bullshit, a blueprint for government abuse!" exclaimed blogger R.W. Twain. "This ruling sets a precedent for allowing government actors to conduct illegal acts outside the reach of FOIA, as long as the government agency claims its activities were 'operational and administrative support for the President and his staff."