FOIA Brain Teaser: When Is An Agency Not An Agency?

A judge ruled this week that the Office of Administration (OA), part of the Executive Office of the President (EOP), is exempt from Freedom of Information Act requests because it is not an “agency” under the law.

The ruling adds to the inconsistent and somewhat arbitrary set of determinations on what is and what is not an FOIA agency. In this case, the OA had been responding to FOIA requests (65 last year alone) and even had a FOIA Officer, but didn’t want to respond to this one request and was able to opt-out of the law. This raises questions over how the definition of “agency” will be construed by the Bush Administration as it draws to a close; more importantly, how the next administration will approach this and other issues affecting the public’s right to know.

The OA case was filed back in May 2007 by Citizens for Responsibility and Ethics in Washington (CREW), a non-profit group, seeking information on missing White House e-mail records. Public reports revealed that close to 5 million e-mails were lost or deleted between March 2003 and October 2005 in apparent violation of record preservation laws. The OA initially agreed to process the CREW request but changed its decision, arguing that it was not required to comply with FOIA.

FOIA defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” The Justice Department has argued that the EOP does not include staff or units whose functions are limited to “advising and assisting the President.”

In its 20-page motion in the CREW lawsuit, the Justice Department said that the only EOP units subject to FOIA are those that wield “substantial authority independently of the President.” The White House Web site describes the OA as providing “direct support services to the President,” including financial management, IT support, printing and graphics support, and mail and messenger services. Since the OA lacks any program or policy responsibilities and is directly under presidential supervision, the administration argued that it should not be considered an “agency,” and the court agreed.

Past court decisions that have attempted to clarify the vague “advising and assisting” principle provide little guidance. For example, the D.C. Circuit ruled that the Council of Environmental Quality did qualify as an agency due to its investigative, evaluative and advisory roles, which exceeded merely advising the President. On the other hand, the former Presidential Task Force on Regulatory Relief was deemed not an agency since members acted as “functional equivalents of assistants to the President.” Likewise the National Security Council has been deemed not to be an agency, given its proximity to the President and the nature of its delegated authority, even though it had formerly processed FOIA requests like the OA.

The rulings on what is and is not an “agency” lack clear and specific standards. When an agency that has been complying with FOIA requests is permitted to suddenly decide that it will stop doing so, such precedent opens up room for exploitation of the FOIA “agency” limitation when information disclosure is perhaps most needed.

Aram Hur contributed to this blog posting.