A nonpartisan watchdog group is fighting the Obama administration's effort to dismiss an open records lawsuit brought against eleven federal agencies and the White House Office of Counsel, and says the administration is trying to conceal information that would embarrass the president.
The group, Cause of Action, filed an opposition brief Monday that charged the administration had demonstrated a "pattern or practice" of obstructing requests made under the Freedom of Information Act. At issue is a 2009 memo issued to federal agencies by then-White House Counsel Gregory Craig "reminding" them to consult with his office before handing over document requests involving White House "equities."
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"Defendants do not disagree that [obstructing requests] would be inconsistent with the text and purposes of FOIA, and they do not disagree that FOIA allows relief for illegal policies and practices," the group stated in its Monday opposition. "They disagree only in the factual issue of whether the Craig memo actually causes unlawful delay."
The Obama administration has set a record for being one of the most opaque since the 1960 passage of FOIA statutes. An annual review of 100 federal agencies published in March indicated the administration had censored or rejected requests for information 77 percent of the time in 2015, 12 percentage points higher compared to Obama's first year in office.
"At issue here is the inappropriate intervention by the White House in agency FOIA processes when it requires pre-production review of records that causes violation of FOIA deadlines," Cause of Action (CoA) argued. "Such practice becomes more questionable absent any substantial interest in records, such as when the White House has only a political interest in records or hopes to avoid embarrassment from their release."
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"The delay caused by the Craig memo ... impinges on the ability of CoA Institute to obtain and disclose information in its role as a government watchdog, which is a core First Amendment function," the group added. "CoA Institute cannot accomplish its mission of public oversight when the White House directs agencies to subject FOIA requests and records to lengthy, unnecessary pre-production consultation and delay."
The group added that judicial action was critical. "The insidious effect of a nonpublic 'White House memo' on the issue, which nonetheless controls a statutory duty of the agencies, is precisely the sort of action that nonstatutory review was designed to address."
Departments named in the suit include Homeland Security, Defense, Energy, Health and Human Services, Interior, Justice, State, Transportation, Treasury, and the Environmental Protection Agency.