A federal judge in Washington, D.C. recently denied requests for government information relating to missing White House emails. The judge made the ruling on the basis that the Office of Administration (OA) does not constitute an "agency" within the ambit of the Freedom of Information Act (FOIA). How did this happen?

According to the Citizens for Responsibility and Ethics in Washington (CREW), OA discovered an issue pertaining to the process for retaining emails by the Executive Office of the President (EOP). Thereafter, CREW submitted two FOIA requests to OA that sought all types of records relating to the potential loss of emails by EOP.

While some records were produced, the vast majority of responsive records were withheld from production. As part of its basis for withholding, OA took the position that it was not an agency subject to FOIA because it simply provides administrative support and services to components within EOP.

Not surprisingly, CREW filed suit seeking various remedies, and arguing that OA is subject to FOIA and must produce the requested records. During the court proceedings, it was revealed that shortly after the establishment of the OA in 1978, President Carter's Associate Counsel sent a memorandum to the Deputy White House Counsel in which it was concluded that OA is an agency within the scope of FOIA. Consistent with this memorandum, the OA in fact published its own FOIA regulations as early as 1980 that provided that "all [OA] records are available to the public."

The court record shows that OA's ultimate, later decision that it is not an agency subject to FOIA did not occur until August, 2007. Interestingly, this is four months after CREW submitted its FOIA requests.

Based on its decision that it now is not an agency governed by FOIA, OA filed a motion to dismiss CREW's complaint for lack of subject matter jurisdiction.

In considering the motion, the judge noted that FOIA requires an "agency" to "make available to the public" various types of government information. FOIA was amended in 1974 to make clear that the definition of agency covers any "establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." However, this definition, as understood by the judge, is not meant to cover the immediate personal staff or units of the Executive Office the sole function of which is to advise and assist the President.

While acknowledging that the decision is a "close one," the judge sided with the OA and granted its motion, concluding that the OA is not an agency under FOIA because it carries out "administrative functions," and does not exercise "substantial independent authority."

With all due respect to the judge in this case, this is a hyper-technical decision that impedes the public's right to know. FOIA was enacted so that the public can monitor the behavior and actions of government officials.

Here, there certainly appears to be a public interest in EOP emails that apparently have gone missing. For years, the OA considered itself an agency subject to FOIA. Indeed, it only reversed that position after CREW's FOIA requests were submitted.

Given that OA has responded to FOIA requests in the past, there does not appear to be any real harm to OA to do so with respect to CREW's FOIA requests, perhaps other than what the requested records may reveal. But just because requested records may potentially reflect poorly on government, is not a reason why information should not be produced.

The FOIA does contain certain exemptions that allow the government not to produce specified categories of information, such as when national security interests could be threatened, and these exemptions can be invoked when appropriate. But to bless the denial of FOIA requests on the basis that the OA is not an agency within the scope of FOIA when the OA has considered itself subject to FOIA for years is not the right result.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com