Report: White House Review Hindering FOIA Releases

Cause of Action finds White House reviews resulting in significant FOIA delays

March 21, 2014

The White House is aggressively monitoring and reviewing Freedom of Information Act (FOIA) disclosures, causing significant delays in some cases, a study by the watchdog group Cause of Action found.

FOIA documents obtained by Cause of Action show White House reviews delayed responses to investigative journalists, watchdog groups, and even congressional investigations.

One White House review delayed response to a FOIA request by a Los Angeles Times reporter by at least two years.

The study, based on records obtained from four federal agencies, found at least 18 FOIA requests were sent to the White House for review between 2012 and 2013.

Cause of Action is still waiting for responses from 16 other agencies. Some of those requests have been pending for more than 200 days.

As previously reported by the Washington Free Beacon, transparency advocates and journalists worry increased review of FOIA requests is politicizing the process and slowing it down.

"The dangers of White House equities reach beyond simple document review," Cause of Action executive director Dan Epstein said in a statement to the Free Beacon. "This unbridled power from the executive interferes with free press and transparency and is, in reality, another form of political targeting to protect the reputation of the administration."

Washington Examiner editor Mark Tapscott wrote that the Obama administration has "effectively amended the law to create a new exception to justify keeping public documents locked away from the public."

According to a 2009 memo from the Counsel to the President to all agency heads and general counsels, the White House reminded all agencies to send FOIA requests containing White House "equities" to it for review.

The equities exception "applies to all documents and records, whether in oral, paper, or electronic form, that relate to communications to and from the White House, including preparations for such communications."

The practice of reviewing FOIA requests with White House materials has been standard since the Reagan administration, but Cause of Action said the scope of review has been expanded under the Obama administration.

In a 1993 memo, the Department of Justice recommended that the practice only be applied to documents that originated from the White House.

The Treasury Inspector General wrote in a 2013 report on White House reviews that "none of the document sets we reviewed appeared to originate with the White House."

The Treasury Inspector General also said White House involvement was minimal and found no evidence of bad-faith practices. However, it did note that White House review "was responsible in several cases for adding a significant processing delay."

The executive branch has long been working with agencies to review FOIA requests, according to Daniel Metcalfe, the founding director of the Justice Department’s Office of Information and Privacy.

Metcalfe served there from 1981 through 2007. He now teaches at American University’s Washington College of Law and is the executive director of the school’s Collaboration on Government Secrecy.

Metcalfe said the executive branch review of FOIA requests with White House materials became standard starting with the first term of the Reagan administration and continued through the next three presidencies, although the George W. Bush administration never issued a formal memo on the practice.

Since much of the executive branch is exempt from the Freedom of Information Act, the White House is well within its authority to review FOIA requests and keep information covered under executive privilege.

"While the consultation process is entirely legitimate, the amount of time consumed by it is another matter, and if this White House is taking too long to respond, then that does leave it open to charges that it's delaying such requests in a self-serving way," Metcalfe said.

"I can't recall an instance, even during Bush 43, where there was any great difficulty with agencies getting documents back from White House review," Metcalfe said.

Documents show the White House reviewed FOIA requests by investigative journalists such as Brad Heath from USA Today, Russ Ptacek from WUSA9, Jennifer Peebles from the Washington Examiner, and Scott MacFarlane from Cox Media.

According to a General Services Administration (GSA) Inspector General report uncovered by Cause of Action, one of McFarlane’s FOIA requests for emails between the GSA and House Minority Leader Nancy Pelosi’s (D., Calif.) office was bounced from the GSA to the Office of Congressional Affairs, and finally all the way to the Office of White House Counsel where it languished for months.

"On a few recent occasions, a federal FOIA staffer has flagged me about a pending delay due to the need for a White House review of my request," McFarlane told the Free Beacon. "But the recent GSA Inspector General report looking into one of my FOIA requests was news to me. I never knew my request had been shipped to the White House for review, and I was surprised to read how many people were part of the process and engaging in discussions about my request, without my knowledge."

The Free Beacon had one FOIA request under White House review for several months after it was originally completed.

The Free Beacon had requested emails from Health and Human Services (HHS) Secretary Kathleen Sebelius’ previously secret email address concerning the Obama administration’s controversial contraception mandate in June of last year.

An HHS FOIA officer told the Free Beacon its request was completed in October, but it contained White House materials and had been sent up for review. After waiting more than 60 days for the White House to complete its review, the Free Beacon received 200 pages of emails, nearly every one redacted.

White House reviews have also impeded congressional investigations.

Last year, the House Oversight and Government Reform Committee asked the National Park Service for documents in preparation for a hearing. The documents were collected and sent to the White House for review, where they sat for six months before the Committee issued a subpoena for them.

The White House did not respond to a request for comment for this story.

Published under: Transparency