Lawsuit claims White House hindering FOIA requests

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A conservative legal group on Monday plans to file a lawsuit alleging that the White House’s tight control over document requests has led to Freedom of Information Act (FOIA) violations by 12 federal agencies.

Cause of Action said the agencies have not handed over documents that the organization asked for up to 14 months ago and that the requests appear to be under White House review, according to a copy of the complaint obtained by The Washington Post. The group plans to file its lawsuit with the U.S. District Court for the District of Columbia.

Cause of Action pointed to an April 2009 White House memo as the source of the delays, noting that Gregory Craig, former counsel to President Obama, instructed federal agencies to consult with his office on “all document requests that may involve documents with White House equities.”


(REUTERS/Yuri Gripas)

The complaint suggests that the administration has abused the equities rule, citing a Washington Times article in which anonymous FOIA officials said that agencies often consult with the White House when requested records are politically sensitive or embarrassing.

The lawsuit notes that the Obama administration has never defined “White House equities” and that the Craig memo “delays the ability of federal agencies to timely respond to FOIA requests.”

President Obama promised on his first day in office to run the most transparent administration in U.S. history, issuing a memo that told agencies to operate with a presumption of openness in the face of doubt about records requests. Critics say the administration’s use of executive-privilege exemptions and the White House equities rule contradict that directive.

Concerns about transparency have been fairly common during Obama’s tenure. A 2010 report from the Associated Press revealed that the Department of Homeland Security “detoured requests for federal records to senior political advisers for highly unusual scrutiny, probing for information about the requesters and delaying disclosures deemed too politically sensitive.”

The White House said in a statement on Sunday that Obama is “committed to a transparent and open government and has taken unprecedented steps to ensure that members of the public have access to information.”

The White House added that the administration processed nearly 680,000 FOIA requests in 2013, representing a two-percent uptick compared to the previous year and the third consecutive year in which an increase occurred.

Cause of Action said the 12 agencies named in its complaint failed to meet statutory deadlines for responding to its requests. FOIA requires agencies to respond within 20 days, or within 30 days under “unusual circumstances.” It allows them to arrange “an alternative time frame” with requestors if needed.

The agencies in the lawsuit informed Cause of Action that they would need extensions and told the group they would simply move forward with the newly proposed timelines if the organization did not respond. The group said it did not believe it had the ability to arrange alternative deadlines “given the language” that the agencies used in their letters.

Cause of Action is asking for a court order requiring the agencies to make final determinations about document requests within 30 days.

The agencies named in the complaint are the Internal Revenue Service, the Office of Management and Budget, and the departments of Defense, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, State, Transportation, Treasury, and Veterans Affairs.

Josh Hicks covers Maryland politics and government. He previously anchored the Post’s Federal Eye blog, focusing on federal accountability and workforce issues.

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Josh Hicks · August 15, 2014

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