Report: WH Quietly Grants Itself Power to Censor FOIA Releases

Tuesday, 01 Jul 2014 07:41 PM

By Todd Beamon

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The Obama administration has quietly granted itself the power to censor or delay information "that could embarrass the White House" and to track who is seeking any such derogatory data, several federal Freedom of Information Act workers say.

The move came in an April 15, 2009, memo from White House Counsel Gregory Craig to all federal agencies, The Washington Times reported on Tuesday, and it surfaced about a year ago.

The newspaper quoted several administration employees who spoke only on condition of anonymity. Craig left the White House in 2010.

The memo barred federal agencies from releasing data under FOIA that contained "White House equities" — information, in essence, that involves or references communications with the White House — without first clearing it with presidential attorneys.

The action has never been required under the FOIA since the law was passed by Congress in 1966, the Times reports.

The White House is not a federal agency and is exempt under the FOIA, but legal experts told the Times that the administration generally should not become involved in any aspect of FOIA requests, including information reviews and document releases.

The memo has drastically slowed, if not stopped, the release of government documents to the public that would have been made available under prior presidential administrations, the FOIA employees told the Times.

It also has created more reviews of documents that mention the White House.

"Under the Bush administration, the White House would sometimes want a heads-up if very sensitive information had been requested, but they didn't care if they heard about it after documents had already been sent out; FOIA requests were not going there for approval," one FOIA officer told the Times.

"What changed with President Obama's administration was that the White House wanted to see requests far in advance, and they wanted to control the timing of the release and what was going to be released."

More specifically, Craig's memo stipulated that all federal employees involved in considering the release of government memos or data in response to FOIA requests must "consult with the White House Counsel's Office on all document requests that may involve documents with White House equities."

But "White House equities" does not appear in the FOIA, which President Lyndon Johnson signed into law. The legislation took effect in 1967.

"If it sounds vague, it's because it was," another FOIA officer told the Times of the memo. "Congressman Darrell Issa once commented that the White House was keeping a Nixonian list of FOIA requesters, and if you think about it, it's exactly that.

"They not only want to know what is sent out from the government, but also who's doing the asking," the officer said.

Issa, a California Republican who chairs the House Oversight and Government Reform Committee, called the White House's effort illegitimate.

"When the White House puts itself in the role of information gatekeeper, they're politicizing a process that is governed by the law and agency rules," Issa told the Times. "Courts have recognized that some internal White House conversations deserve protection from disclosure, but their claims that they can hide interactions with public agencies are illegitimate."

Since Craig's memo, information releases have slowed dramatically, the Times reports. By the end of 2011, the Obama administration had received 644,000 FOIA requests, and its backlog had expanded from 70,000 to more than 83,000 in the same period. FOIA lawsuits also increased by 28 percent during the administration's first term.

White House officials declined to discuss the memo, telling the Times only that the document "speaks for itself" and that its attorneys wanted to review only information that affected the administration or the president.

"It's simply false to say that agencies consult the White House on all FOIAs," White House spokesman Matthew Lehrich told the Times in an email. "As has long been the practice across administrations of both parties, agencies consult the White House as a courtesy when White House equities are implicated."

The newspaper said it then called Lehrich, seeking a clearer definition of "White House equities." The spokesman said only, "I'm going to let the memo speak for itself and wish you a good day."

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