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White House Wins Ruling On E-mail Records
An anonymous reader writes "The White House Office of Administration is not required to turn over records about a trove of possibly missing e-mails, a federal judge ruled Monday. The ruling by U.S. District Judge Colleen Kollar-Kotelly found the agency does not have 'substantial independent authority,' so it is not subject to the Freedom of Information Act."
"Sorry, I'm only the FBI director's SECRETARY. I don't have substantial independent authority." The FOIA does apply to all government agencies.
However, if the "agency" does not have "substantial independent authority" from the Executive, then it is not considered an agency for the purposes of the FOIA, it is considered a unit of the Executive Office.
Here's a 13 year old case that references even older cases supporting that interpretation
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-5411a.html 5 U.S.C. 552(f) (emphasis added). The Supreme Court has held thatSo while I agree with the watchdog organization Citizens for Responsibility and Ethics in Washington that "The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails," I'd have to say its pretty obvious that the Bush Administration is on sound legal footing when they do so.
[Fuck Beta]
o0t!
It does not apply to all government entities. The opinion in this case explains the relevant standards:
In 1974, Congress amended the FOIA definition of agency to cover any "establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. 552(f). This definition "was not, however, meant to cover 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.'" Armstrong, 90 F.3d at 558 (quoting H.R. Rep. No. 93-1380, at 14 (1974) (Conf. Rep.)). Indeed, Congress intended to codify the D.C. Circuit's decision in Soucie. Id. ("That the Congress intended to codify Soucie is clear enough.") (citing Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993)). Soucie, however, offers two possible tests for determining whether an EOP component is an agency subject to the FOIA: (1) whether the entity exercises "substantial independent authority," and (2) whether the entity's "sole function is to advise and assist the President." Soucie, 448 F.2d at 1073, 1075; see also Armstrong, 90 F.3d at 558. Following the 1974 Amendments to the FOIA, as discussed in greater detail below, the D.C. Circuit considered these two factors in determining whether a variety of EOP components were agencies subject to the FOIA.
In 1993, the D.C. Circuit issued its opinion in Meyer v. Bush, 981 F.2d 1288, which "managed to harmonize" the two Soucie criteria "by using a three-factor test to determine the status under FOIA of a unit in the Executive Office of the President." Armstrong, 90 F.3d at 558. Specifically, the Meyer court determined that, in "apply[ing] Soucie to those who help the President supervise others in the executive branch . . . it is necessary to focus on three interrelated factors . . . [(1)] how close operationally the group is to the President, [(2)] what the nature of its delegation from the President is, and [(3)] whether it has a self-contained structure." 981 F.2d at 1293.
In short, it is well-settled law that some executive entities are not covered by FOIA, and there is significant precedent for making the determination. That's not to say the judge was right or wrong, just that "FOIA applies to all agencies" is not the proper mode of criticism.
Wow. We should be very mad at President Clinton for appointing her to the Federal Bench.
No, I think you missed the point of his post. Judges aren't there to make law. They are there to interpret the law, as written, and weigh the merits of the case at hand as to what precedents apply based on current facts.
The Supreme Court also is supposed to do this, its just that at that level they are almost exclusively supposed to put the law in the context of the Constitution. Then the thing is, if they are strict constructionist or not, as to what "side" they're likely to come down upon.
Thing is, When Washington was appointing judges, its not like they had to reach very hard to find out what the guys who wrote the Constitution meant -- they were alive and kicking and hanging out down the block. The system was created before political parties when it was just assumed that people would know what they were supposed to do.
Of course, things are different now. People who see themselves as "Democrats" or "Republicans," "Liberals" or "Conservatives," instead of just as "Americans" are in the position to appoint judges who will agree with their specific neo-tribalist sensibilities, slants and biases.
However, I would venture to say that no matter what form of government was constituted, the end result would have been the same because the pattern is obvious since the time of Rome, if not before.
Here's a 13 year old case that references even older cases supporting that interpretation
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-5411a.html 5 U.S.C. 552(f) (emphasis added). The Supreme Court has held that
"the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President" are not included within the term "agency" under the FOIA. So while I agree with the watchdog organization Citizens for Responsibility and Ethics in Washington that "The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails"...
I'd have to say its pretty obvious that the Bush Administration is on sound legal footing when they do so.
[Fuck Beta]
o0t!
In short, it is well-settled law that some executive entities are not covered by FOIA
Does this even matter very much? So they escape the FOIA, are they still not subject to the Presidential Records Act and possibly the Hatch Act?
Leave the gun, take the cannolis.
One more method of accountability has been lost. I don't see that as an "Oh Well," situation. Cool your jets.
Presidential records are subject to the Presidential Records Act (PRA) of 1978
That act was passed in honor of Richard Nixon's shenanigans.
When the President leaves office, his records are given to the National Archives
The Archives hang on to them for 12 years before making them public.
You may recall Bush issued an executive order in 2001 that limited the scope of the PRA
http://en.wikipedia.org/wiki/Executive_Order_13233
And you may also recall that a lot of people were unhappy with it.
I hope McCain or Obama repeals that Executive Order upon taking office.
[Fuck Beta]
o0t!
From the Wikipedia article on E.O. 13233:I wonder what he's getting in return for holding the party line until the destruction is a fait accompli?
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
>Cheney says the office of the Vice President is not part of the Executive branch.
He is correct. The Vice President's primary duty is to serve as President of the Senate.
-fb Everything not expressly forbidden is now mandatory.