The Tornado that Ripped Through Sunshine Week

public recordsLast month, my colleague posted about a pair of bipartisan bills that were introduced to provide greater access to federal agency records under the Freedom of Information Act ("FOIA" or the "Act"). Despite this significant move to reform FOIA, and increase access to government records, on March 17, the White House announced that it would remove a federal regulation that subjects the Office of Administration to the Act. Ironically, the announcement came during the 10th anniversary of "Sunshine Week" in D.C. – an annual celebration of open government and access to public information started by various organizations in support of the freedom of the press.

The Office of Administration was established in 1977 by President Carter, and "[p]roved[es] effective, efficient and economical administrative and business services to the Executive Office of the President." The Office actually comprises seven offices, including the Office of the Chief Financial Officer, Office of the Chief Information Officer, and Office of the General Counsel. In other words, if you want to know what's happening at the White House, the Office of Administration is the place to go.

In 2009, the United States District Court for the District of Columbia found that the Office of Administration was not subject to FOIA. Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 220 (D.C. Cir. 2009) ("We conclude that the Office of Administration is not [subject to FOIA] because it performs only operational and administrative tasks in support of the President and his staff and therefore, under our precedent, lacks substantial independent authority."). The key issue in Citizens was whether the Office of Administration was an "agency" under FOIA. The court found that it was not an agency because it did not "wield[] substantial authority independently of the President."

Notwithstanding the 2009 decision, as well as various White House policies that claimed an exemption to the Act under Presidents Bush and Obama, the White House has voluntarily released records in response to various public records requests over the years. Now, however, the rule change seems to indicate that the Office of Administration will act in exemption from the Act – no longer releasing any records, voluntarily or otherwise.

About The Author

Erin Rhinehart | Faruki Partner