[NYTr] Bush Cover-Up Office "Not Subject" to Open-Records Law?

[All the News That Doesn't Fit]

sent by Rick Kissell

The Washington Post - Aug 23, 2007

White House Declares Office Off-Limits

Administrator of Missing E-Mails Not Subject 
to Open-Records Law, It Says

By Dan Eggen

The Bush administration argued in court papers this week that the White 
House Office of Administration is not subject to the Freedom of 
Information Act as part of its effort to fend off a civil lawsuit 
seeking the release of internal documents about a large number of 
e-mails missing from White House servers.

The claim, made in a motion filed Tuesday by the Justice Department, is 
at odds with a depiction of the office on the White House's own Web 
site. As of yesterday, the site listed the Office of Administration as 
one of six presidential entities subject to the open-records law, which 
is commonly known by its abbreviation, FOIA.

Citizens for Responsibility and Ethics in Washington, a nonprofit
group, filed a lawsuit in May seeking Office of Administration records
about the missing e-mails, including when they were deleted from
government computer files. CREW said it understood that internal White
House documents had estimated at least 5 million e-mails were missing
from March 2003 to October 2005.

The Bush administration has not provided a number publicly. Some of the 
records may have been subject to a document preservation law 
administered by the National Archives and Records Administration. 
Congress has sought access to them as part of its probe into the 
administration's firing of nine U.S. federal prosecutors in 2006.

Melanie Sloan, CREW's executive director, said that "one has to wonder 
if this is an effort by the White House to keep secret the details of 
how millions of White House e-mail suddenly went missing. The OA's 
disingenuous claim that it is not subject to the FOIA is contradicted
by its own actions and statements."

White House spokesman Scott Stanzel declined to comment yesterday.

Much of the White House, including the offices of President Bush and 
Vice President Cheney, is not subject to FOIA, which allows the media 
and the public to demand disclosure of federal public records. But the 
Office of Administration, which was formed in 1977 and handles various 
administrative and technology duties, responded to 65 FOIA requests
last year and even has its own FOIA officer, records show.

In its 20-page motion, the Justice Department argues that past behavior 
is irrelevant, pointing to a 1996 appellate court ruling that found the 
White House-based National Security Council was not covered by FOIA
even though it had complied with the law previously.

As with the NSC, the government argues that the Office of
Administration is not an "agency" as defined under the open-records
statute because it has no substantial authority independent of the
president.

"To be sure, OA currently has regulations implementing FOIA and has not 
taken the position in prior litigation that it is not subject to FOIA," 
the filing says. "However, the D.C. Circuit has held that this is not 
probative on the question of whether an EOP unit does, in fact, satisfy 
FOIA's definition of 'agency.' "

Steven Aftergood, director of the Project on Government Secrecy for the 
Federation of American Scientists, said that given the previous ruling 
on the NSC, the White House may be successful in its bid to close off 
its administrative office to public scrutiny.

"It's obnoxious, and it's a gesture of defiance against the norms of 
open government," Aftergood said. "But it turns out that a White House 
body can be an agency one day and cease to be one the next day, as 
absurd as it may seem."