DC Circuit Decision Highlights Importance of Discretion Under New Administration’s FOIA Policy

By JP Ellison –

We previously reported on the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines encouraging discretionary disclosure.  Today, the D.C. Circuit handed the Administration a FOIA win that shows the importance of such discretionary disclosures, given FOIA’s exemptions. 

In CREW v. Office of Administration, the court ruled that the Office of Administration (“OA”) within the White House, was 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,” and thus is exempt from FOIA.

According to the plaintiff, historically OA had complied with FOIA requests until some point in the prior Administration.  The court found it legally irrelevant what OA had done in the past, stating “past views have no bearing on the legal issue whether a unit is, in fact, an agency subject to FOIA.”

Perhaps more interesting than the decision concerning OA itself is the listing of entities that have been found to be FOIA exempt historically, including the Council of Economic Advisors, the National Security Council, and President Reagan’s Task Force on Regulatory Relief.  All of those entities were found to be FOIA exempt because they did not have a substantive role separate from advising the President.

Given the FOIA precedent, it would seem that the Administration could argue that the newly created White House Office of Health Reform is FOIA exempt.  In addition to health reform, the Administration has tapped “czars” for energy and urban affairs, which similarly could be FOIA exempt. 

It will be interesting to follow the position of the Administration with respect to FOIA’s application to these entities.  It will be similarly interesting to see whether the Administration elects to make discretionary disclosures from these and similar entities regardless of its legal position.