This week a federal court ruled against Citizens for Responsibility and Ethics in Washington in a case involving lost White House emails. CREW's Chief Counsel Anne Weismann says that while the case involved emails from the Bush Administration, the Obama Administration has yet to live up to its promise of transparency.
BOB GARFIELD: This week we saw another blow to transparency. On Tuesday, a Federal appellate court issued a ruling saying that the White House Office of Administration does not have to turn over documents explaining how millions of Bush Administration emails went missing and what archiving systems have been put in place from happening again. The ruling, by three judges appointed by Republican presidents, argued that the Office of Administration is not a White House agency and, therefore, not bound by transparency rules for the White House. The losers in the case were the Citizens for Responsibility and Ethics in Washington who originally filed the FOIA request in 2007 asking for the documents. Their Chief Counsel Anne Weismann joins me now. Anne, welcome to On the Media.
ANNE WEISMANN: Thank you.
BOB GARFIELD: Now, this Office of Administration is part of the White House but the Court has ruled that, for the purposes of FOIA, anyway, it is not part of the Executive Branch. And I'm not sure how those two things can be true simultaneously.
ANNE WEISMANN: It's a little hyper-technical. Let me try to explain it. Within the Executive Office of the President, there are multiple different components. Some of those are agencies, like the Office of Management and Budget, the Council on Environment Quality. And what that means is that they have to comply with the Freedom of Information Act. Other components of the Executive Office of the President are recognized to not be agencies. They're all under this umbrella organization, the Executive Office of the President, but some are subject to transparency laws and some are not.
BOB GARFIELD: Now, that makes perfect sense, but the twist in all of this is that before this ruling the Office of Administration had in the past frequently responded to FOIA requests and even had a policy for handling FOIA requests.
ANNE WEISMANN: Well, yes. The Office of Administration was created by President Carter in the 1970's and from its outset it was considered to be an agency. It wasn't until the Bush Administration and our FOIA request — they had it in hand, they'd agreed to process it, and then at the point where they were going to have to tell us what documents they had and whether or not they were going to produce them, they suddenly declared that they are not an agency. So this was a very radical shift and, again, the import of the shift was that all of these documents are not publicly available anymore.
BOB GARFIELD: Okay, so we know that the Bush Administration was a kind of eight-year ongoing stonewall, but now comes the Obama Administration —surely, the transparency President will undo this problem and reopen the Office of Administration to FOIA requests and give the public access to the explanation for the missing emails, right?
ANNE WEISMANN: Well, I wish I could share your certainty, but I think the record so far is far too unclear to be certain one way or the other what he's going to do. My organization, along with 36 other organizations, sent a letter to the White House Council saying, you've embraced and endorsed transparency, it has to begin at home. Make the records of the Office of Administration publicly available, just like every President except for President George Bush has done. And we haven't heard yet.
BOB GARFIELD: But you may have some inkling, based on a separate lawsuit that your organization has filed concerning the Bush Administration emails.
ANNE WEISMANN: Well, yes. After we filed this FOIA request we filed a separate lawsuit claiming that the White House was violating their legal obligation because they knew that millions of email were missing, they failed to take any action to restore those records, and they failed to have in place an effective recordkeeping system that would prevent this from happening again. On President Obama's first full day in office, the White House filed a motion in that case, asking that the lawsuit be dismissed. And the grounds they gave was that they had done a limited project to restore a very limited number of the missing email, and they shouldn't have to do anything more.
Needless to say, this was a very disappointing action on their part. But I would point out there's another lawsuit, a lawsuit from the Bush era, that I think also sends a very troubling message. And that's our quest to get the visitor records that the Secret Service creates when people go to the White House. The Bush Administration, for the first time, took the view that those were presidential records, which meant they were not subject to the Freedom of Information Act. We won that battle in the court. It's back in court. Last week they filed a brief in the Court of Appeals that makes it clear that the Obama Administration is continuing the argument that these records are not agency records and they're not available to the public. When we put all this together, we see a very troubling and inconsistent pattern, and we're just not sure what it means.
BOB GARFIELD: Now, we've been having conversations like this on this show for going on four months now, as various guests have been flummoxed by the Administration's position on the state secret privilege, and now these email cases. What's your best guess as to what's going on?
ANNE WEISMANN: President Obama and his administration have a large number of very pressing issues to deal with. And I think that my organization and others would be willing to give them some time to sort this out, except for one thing. President Obama kind of picked the timing by declaring, on January 21st, through various memoranda that he came out with, that he was committed to transparency and accountability and that these were very important goals in his administration.
BOB GARFIELD: Not to mention, his campaigning on that very issue.
ANNE WEISMANN: Exactly. I mean, I don't pretend to really know the answer. I remain hopeful that when they are forced to focus on these issues that they will come out on the side of transparency. But I raised the Secret Service example because that's one where I'm especially troubled because when they were ordered by the court to file a brief, then they were forced to evaluate the situation and decide, you know, are we going to continue to say that the public doesn't have a right to know who visits the White House, or are we going to embrace transparency? And so far, what they've elected to do is embrace the same policies of the Bush White House, the anti-transparency policies.
BOB GARFIELD: Anne, I appreciate it. Thank you.
ANNE WEISMANN: Thank you for having me.
BOB GARFIELD: Anne Weismann is Chief Counsel for Citizens for Responsibility and Ethics, in Washington, D.C.
WNYC 93.9 FM and AM 820 are New York's flagship public radio
stations, broadcasting the finest programs from NPR, PRI and American Public Media, as well as a wide range of award-winning local
programming. WNYC is a division of
New York Public Radio.