Court: Office of Administration not subject to FOIA

A federal appeals court in Washington, D.C. said Tuesday that records of missing e-mail from the Bush White House do not have to be turned over because the office that created them is not subject to the Freedom of Information Act.

The U.S. Court of Appeals for the District of Columbia said the Office of Administration ("OA") does not meet the definition of a federal agency under the open records law. The office provides support and administrative services to the president, the court found, and it lacks substantial independent authority. So even though the office had complied with the records law for decades, it is not subject to the law’s requirements that records be made available for public inspection.

The case started in 2007 when Citizens for Responsibility and Ethics in Washington, an advocacy group based in the capital, requested copies of records related to millions of missing White House e-mail messages. The OA turned over some records after CREW filed a lawsuit to compel  disclosure, but then took the position that it was not covered by the records law and did not have to comply. A federal district court agreed with the Bush Administration’s position in June 2008 and dismissed CREW’s lawsuit. The appeals court has now upheld that decision.

CREW and 13 other organizations, including The Reporters Committee for Freedom of the Press, sent a letter last week to the Obama Administration asking for a reversal of the Bush White House’s position: "This radical departure from the policies and practices of all prior administrations rests on a flawed legal theory that fails to properly consider OA’s role within the Executive Office of the President and its lack of proximity to the President," the letter said.