CREW's statement on White House claim not to be subjected to FOIA

22 Aug 2007 // Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), said today:

"The newly minted argument that the Office of Administration is not an agency is akin to the Vice President's declaration that he is not a part of the executive branch. One has to wonder if this is an effort by the White House to keep secret the details of how millions of White House email suddenly went missing.

The OA's disingenuous claim that it is not subject to the FOIA is contradicted by its own actions and statements. On the White House's own website, the OA is designated as one of the few components in the Executive Office of the President subject to the FOIA. The website also provides a link to the OA's FOIA regulations and identifies an OA FOIA officer."

White House website links to the Office of Administration FOIA regulations and personnel:
www.whitehouse.gov/oa/foia/handbook.html
www.whitehouse.gov/government/eop-foia.html
www.whitehouse.gov/oa/foia/title5.html
www.whitehouse.gov/oa/foia/readroom.html
www.usdoj.gov/oip/foiacontacts.htm

Here is the verbiage on White House website:

FOIA within the EOP

The President's immediate personal staff and units within the EOP whose sole function is to advise and assist the President are not subject to FOIA.

Please contact the separate EOP entities, that are subject to FOIA, individually, if you would like to make a FOIA request for their records.

The EOP entities subject to the FOIA are:
Council on Environmental Quality
Office of Administration
Office of Management and Budget
Office of National Drug Control Policy
Office of Science and Technology Policy
Office of the United States Trade Representative

The EOP entities exempt from the provisions of the FOIA are:

White House Office
Office of the Vice President
Council of Economic Advisers
National Security Council
Office of Policy Development
Domestic Policy Council
Office of National AIDS Policy
National Economic Council
President's Foreign Intelligence Advisory Board

Here is the Office of Administration of FOIA under Clinton:

PART 2502--AVAILABILITY OF RECORDS--Table of Contents

Subpart A--Production or Disclosure of Records Under the Freedom of Information Act,
5U.S.C. 552

Sec. 2502.1 Definitions.

(a) Office or OA means the Office of Administration, Executive Office of the President;
(b) Agency means agency as defined in 5 U.S.C. 552 (e);
(c) Workday means those days when the Office is open for the conduct of government business, and does not include Saturdays, Sundays and legal public holidays;
(d) FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.

[45 FR 47112, July 14, 1980, as amended at 49 FR 28233, July 11, 1984]

Sec. 2502.2 Purpose and scope.

This subpart contains the regulations of the Office of Administration, Executive Office of the President, implementing 5 U.S.C. 552. The regulations of this subpart describe the procedures by which records may be obtained from all organizational units within the Office of Administration. Official records of the Office made available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public only as prescribed by this subpart.

To the extent that it is not prohibited by other laws the Office also will make available records which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the public interest.


http://clinton3.nara.gov/WH/EOP/html/other/foia/title5.html

On a side note:



<--This is the orginal verbiage on the White House website before altered.

From TPM:

Right there, you can see that the Office of Administration is listed as an agency subject to FOIA. But apparently that's because the administration never gave it much thought.

In a motion filed yesterday, Justice Department lawyers argued that the Office of Administration is not subject to FOIA. Their reasoning: the office is not an "agency," by the definition of FOIA.