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."

Comments

To sum up then:

[Anonymous Coward]

The White House Office of Administration is not bound by the Freedom of Information Act, a judge says. What. The. Fuck?

Ah well, that's okay

[Skyshadow]

Openness is overrated in democratic societies, anyhow. I'm sure they wouldn't be keeping this all a secret if it weren't in the best interests of the people.

Now, if you'll excuse me, I need to go send my credit card numbers to these nice former Nigerian heads of state.

When did this change?

[Hyppy]

IANAL, but I'm still surprised to hear that the FOIA only applies to government offices which have "substantial independent authority."

From everything I've heard, it applies to all government agencies. Does this mean if a government office can make itself appear harmless enough, it doesn't have to cooperate?

"Sorry, I'm only the FBI director's SECRETARY. I don't have substantial independent authority."

Re:When did this change?

[TubeSteak]

From everything I've heard, it applies to all government agencies. Does this mean if a government office can make itself appear harmless enough, it doesn't have to cooperate?

"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.

Re:When did this change?

[sed quid in infernos]

IANAL, but I'm still surprised to hear that the FOIA only applies to government offices which have "substantial independent authority." From everything I've heard, it applies to all government agencies.

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.

Re:When did this change?

[mattwarden]

My question is: if the WH Office of Admin doesn't have independent authority, then that implies that it is under some other organization's authority, right? If so, we should be able to send the FOIA request to that authority.

That is, if this isn't bullshit.

Re:When did this change?

[TubeSteak]

Crap, I munged the quote somehow

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.

Re:When did this change?

[WindowlessView]

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?

Re:When did this change?

[goodmanj]

So, have I got this right? (IANAL):

The President's records fall under "Executive Privilege", and cannot be subpoenaed or FOIA'd. Rationale: the Pres needs to be able to make independent decisions without being second-guessed or legally harassed.

Federal agencies with authority independent from the President do not have this privilege, and must comply with FOIA. Rationale: the people should know what their government is up to.

Legal question: Is the White House's internal bureaucracy part of "the President" or is it an "independent agency" from the president? Judge's answer: it's part of the President, and therefore privileged.

Can't say I like what the White House is doing, but the judge's decision looks pretty clear-cut as I see it.

Re:When did this change?

[fishbowl]

>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.

The Microsoft connection

[mollog]

Isn't Judge Colleen Kollar-Kotelly the same bonehead that overturned the Microsoft ruling?

And, can we expect this ruling to be appealed?

Re:The Microsoft connection

[SirGarlon]

Yes. But don't blame the judge for the ruling; she can only rule based on the evidence before her. Blame the prosecutors who did a shoddy job of putting the evidence before her, and the Microsoft defense attorneys who drew out the case beyond the states' will to pursue it with the required attention and vigor.

Re:The Microsoft connection

[freenix]

Select, Right-Click, Wikipedia search. She did screw up Penfield's work on the M$ trial. She should have refused because Penfield was the only person who could have know enough to judge the case. More to the point, she just reversed an October 2007 ruling about Presidential documents.

On October 1, 2007, U.S. District Judge Colleen Kollar-Kotelly reversed George W. Bush on archive secrecy, (38-page) ruling that the U.S. Archivist's reliance on the executive order to delay release of the papers of former presidents is "arbitrary, capricious, an abuse of discretion and not in accordance with law." National Security Archives, at George Washington University alleged that the Bush order severely slowed or prevented the release of historic presidential papers.

Involvement with FISA should disbar anyone - the court violates the 4th amendment by being a secret court.

Re:The Microsoft connection

[Kadin2048]

Yes. But don't blame the judge for the ruling; she can only rule based on the evidence before her. [...] I think there's enough blame to go around.

Kollar-Kotelly seems suspiciously like a party apparatchik, delivering the exact rulings the Republicans need, just when they most desperately need them. She did it in the Microsoft case and she did it again now. Perhaps that isn't yet enough to establish a pattern, but at the very least it's enough to arouse suspicion.

And judges can and do decide cases based on many factors besides the evidence; the law leaves more than enough room for the introduction of personal biases. It's unfortunately very difficult to ferret out, because it can be trivially hidden behind a facade of nitpicking.

Re:The Microsoft connection

[Anonymous Coward]

She's a Clinton appointee and other than this hasn't really been friendly to the Bush administration:

"In August 2007, in a rare move, Judge Kollar-Kotelly ordered the administration of George W. Bush to give its views regarding records requests by the ACLU on the National Security Agency's wiretapping program"

"On October 1, 2007, Judge Kollar-Kotelly reversed George W. Bush on archive secrecy in a 38-page ruling, which said that the U.S. Archivist's reliance on the executive order to delay release of the papers of former presidents is "arbitrary, capricious, an abuse of discretion and not in accordance with law."[3] The National Security Archive at George Washington University alleged that the Bush order severely slowed or prevented the release of historic presidential papers."

Both via her Wikipedia page. I'd say if anything, she's refusing to be partisan either way.

Re:Cue the Bush bashing

[erroneus]

This isn't about Bush bashing. This is wrong no matter what president is in office. The whole point of our constitutional government is so that government cannot make itself more important than the people it governs. In short, to prevent the mistake that England and other governments made which necessitated [bloody] revolution. We've got secret laws, secret courts, and now even more secrecy within the government that we do know about.

Cue the "corruption at the highest levels" whines

[Loopy]

Note that, unlike popular current trends, judges are not there to decide what the law _should_ be and rule on that but only to enforce the applicability of current laws to the specifics of the case at hand. Might think about that before you decry the ruling. Bottom line: if you don't like this, stop whining and playing the martyr and go vote for someone that will do what you want. Otherwise, see Catharsis(4)(a).

Re:Cue the Bush bashing

[Breakfast Cereal]

Could you explain this statement? You seem to be saying that we shouldn't be critical of one particular politician and/or party because another hypothetical politician and/or party would do the same thing, at least hypothetically. Doesn't this constitute a race to the bottom for ethical standards, and shouldn't we demand better than that?

Re:Cue the Bush bashing

[SirLurksAlot]

Really, it would have been either party, and any person in office that would have fought this.

That's entirely irrelevant. I don't really care what party it is, if the Democrats were in this situation they would be scrutinized just as much as the current administration is.

They are politicians, what do you expect?

That they be held accountable for their actions?

Next up: Mandatory Journaling

[BobMcD]

Time to get some mandatory email journaling voted in, folks.

Seriously, what if the roles were reversed? The Feds are looking for some HIPAA-related email, and you can't produce it. What would they say??

"You should have had a system in place that you could rely on..."

Goose, meet Gander.

In case you are missing the context here

[MarkusQ]

In case you are missing the context here, the emails in question are interesting for a whole slew of reasons. The probably contain evidence of high crimes and misdemeanors (most likely by Cheney, but who knows) and pretty much have to contain evidence of perjury (with the morass of statements that have been made under oath, someone is surely lying, we just don't know who). And them there's the Hacth act violations, the Abrimoff issues, the election tampering, and on and on.

These are the missing 18 minutes gone gonzo,

--MarkusQ

don't worry about it folks

[circletimessquare]

if you can't get the transparency from your democratic government that you deserve, petition the chinese government to air their copies of our government's email

i'm sure they have a copy of the inboxes in question sitting around somewhere

thank god for shoddy us government computer security and snooping totalitarian regimes: securing the transparency in our democracy that we deserve!

Re:Cue the "corruption at the highest levels" whin

[nickhart]

Bottom line: if you don't like this, stop whining and playing the martyr and go vote for someone that will do what you want.

If voting could actually change anything, then it would be illegal. You think shuffling around Congress and the White House will change the entrenched corruption, pay-to-play atmosphere and pro-corporate agenda of the US government (or any government)?

Voting is little more than a democracy placebo. Every few years you are given a "choice" between corporate candidate A and corporate candidate B, both of whom support the exact same agenda--only phrased differently and with a few minor variations. Enter the compliant corporate media to highlight and magnify those differences and shut out any genuine challengers to the status quo.

Meanwhile, everyone is so busy arguing over which of the terrible candidates is less terrible, that the task of building a genuine progressive, grassroots movement for change (against the war, for worker's rights, health care, etc...) is indefinitely shelved. The only way to win progress is through struggle. As abolitionist Frederick Douglass once said, "Power concedes nothing without a demand." So instead of actually struggling for change we're herded into the political system controlled by the same people who benefit from the status quo and resist our every demand for progress. All of our demands are dropped or watered down to suit the electoral needs of your chosen candidate--and after the election they are forgotten completely.

The major parties aren't worth wasting more than 1 minute or 1 dime on. The real task is to create a movement powerful enough to win our demands regardless of which corporate tool sits in the White House. As famous historian Howard Zinn put it, "the really critical thing isn't who is sitting in the White House, but who is sitting in--in the streets, in the cafeterias, in the halls of government, in the factories. Who is protesting, who is occupying offices and demonstrating--those are the things that determine what happens."

Re:Judge Kollar-Kotelly is a Fascist

[Snowgen]

Colleen Kollar-Kotelly [wikipedia.org], who just created this official, binding policy that the government is above the law, is a fascist judge. She might be familiar to Slashdotters as the judge who the incoming Bush "Justice" Department got to run the Microsoft monopoly verdict's appeal and toothless "remedy [wikipedia.org] phase. You might not know that Kollar-Kotelly ruled in the execution trial of Saddam Hussein that "the United States has no right to interfere with the judicial processes of another nation's courts", when such interference might mean Hussein might live to tell more of what he knows about US interference in Iraq, or rather its lengthy cooperation with his murderous regime. And you might not realize that Kollar-Kotelly is the presiding judge of the Bush-packed FISA Court [wikipedia.org], that has rubberstamped Bush's regime's tens of thousands of "exceptional" wiretap requests that violate the 4th Amendment (which artificial loophole is the entire purpose of that court). Which is why today's Congressional Republicans are doing everything they can to put telco amnesty for violating FISA under the FISA Court's jurisdiction, instead of a regular court that actually obeys the Constitution. Kollar-Kotelly is the go-to judge for Unitary Executive [wikipedia.org] fantasy privileges, whenever they can squeak some out. After all, she kicked off her legal career as a lawyer for Nixon's "Justice" Department. Play ball!

Wow. We should be very mad at President Clinton for appointing her to the Federal Bench.

Re:Cue the "corruption at the highest levels" whin

[bsDaemon]

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.

Wrong way around

[EmbeddedJanitor]

Fuck the what.

Oh well, only a few months left

Re:Wrong way around

[Clockwork Apple]

"Oh well, only a few months left.

But this sets a legal precedent that similar emails will NEVER be subject to the FOIA. The next president will not even have to think twice about it, or bother to hide or lose them. They just don't have to let us see them.

One more method of accountability has been lost. I don't see that as an "Oh Well," situation.

C.

Re:Wrong way around

[raehl]

Presidential communications are not subject to FOIA. If Congress wants the public to have access to those communications, they should pass a law requiring that.

Access to communications required by subpoena or Congress, however, should most certainly be required.

Re:Wrong way around

[TubeSteak]

But this sets a legal precedent that similar emails will NEVER be subject to the FOIA. The next president will not even have to think twice about it, or bother to hide or lose them. They just don't have to let us see them.

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.

Re:Wrong way around

[Kadin2048]

They already have. It passed the House by a veto-proof majority; one Senator is keeping it away from a vote in the Senate.

From the Wikipedia article on E.O. 13233:

On March 1, 2007, a subcommittee of the Committee on Government Reform held a hearing on bill H.R. 1255, the Presidential Records Act Amendments of 2007. At the hearing, several historians argued that Order 13233 has severely curtailed public access to presidential records and added to delays in obtaining materials from presidential libraries. The bill was reported favorably by the full committee, and on March 14, 2007, the House passed the bill in an overwhelmingly bipartisan vote of 333-93. The bill also passed on June 13, 2007 in a Senate committee, but as of March 2008 has not yet been brought up for floor consideration, reportedly due to a hold placed on the measure by Senator Jim Bunning (R-KY)[4]. President Bush has threatened to veto the bill, but the House vote marked a veto-proof majority and the Senate Committee passage was unanimous.

I wonder what he's getting in return for holding the party line until the destruction is a fait accompli?

Re:Judge Kollar-Kotelly is a Fascist

[Doc Ruby]

I am. Almost as mad as I am for his appointing Republican senator William Cohen as his Defense Secretary (1997-2001), who dismissed Wesley Clark from commanding NATO (apparently for winning the Kosovo War without any US casualties). Which gave us the Pentagon that backed Bush every step of the way lying us into the Iraq War, while letting Binladen go (despite Clinton forcing Cohen's Pentagon to bomb Binladen's bases).

Aren't you mad about all that too?

Re:Cue the "corruption at the highest levels" whin

[Knara]

Well, they (judges and justices, all-inclusive) are there to both interpret the law and to determine if the law is constitutional.

This is why people roll their eyes when wackjobs start harping about "activist judges". That's what judges are there for, to temper the will of the people (or their representatives), and the power of the executive branch, via applying the filter of the Constitution to their actions.

Wrong headline

[drquoz]

It shouldn't be "White House Wins" -- it should be "Citizens Lose".

Cue the Republican pissiness.

[Fantastic Lad]

I happen to agree, but i was just commenting on what will become a bashfest and the true issue will be lost in the noise. You are speaking rationally, which isn't in vogue here when it comes to political issues.

Actually, I don't think there is that much pure Bashing happening around these parts. --I equate 'Bashing' with the desire punish by proxy for purely emotional reasons devoid of rationality or factual data. You can see evidence of this on those blog sites which are hopelessly obsessed and enraged far beyond any measure of reason by such things as, 'welfare moms milking the system'.

When discussing Bush, however, it's hard when pointing out basic reality to sound like one is doing anything BUT bashing. This is due to the reality being so very grim and the damning facts so plentiful. Welfare Moms and similar concerns generally don't have much impact on anything, whereas Bush policies have resulted in $120 per barrel oil, a crashed dollar, a quagmired immoral war, the hideously mis-managed Katrina disaster, to name just a few items. So the complaints may sound like 'Bush Bashing' but really, I would say that it is rational and necessary discussion, especially in the lead-up to the next election. Calling legitimate complaints about things which affect everybody in the country 'Bush Bashing' and condemning it as such smacks of Republican pouting and pissiness.

Sorry. I refuse to allow people make me feel guilty for having legitimate complaints. Abusive parents do the same thing to their kids.

-FL

Re:Cue the "corruption at the highest levels" whin

[jedidiah]

> 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 fun thing about the law... and all the caselaw that goes with it, is that there's so much of it.

You could argue it either way.

So underlying legal philosophies do come into play. That's why it matters who
gets apointed to the bench. They can push the law in one direction or another.
They may choose to only push inches at a time but they can still push.

kids: the lesson you should take away is

[TheGratefulNet]

BE DISHONEST! it pays. its the quickest way to succeed in the New America(tm).

please don't believe in 'good guys win, bad guys lose'. clearly, bad guys WIN BIG. they cover their tracks, they lie and cheat and steal and kill and start wars to further their personal needs.

we all take our examples from our highest leaders. if something is game for our leaders, it should be good enough for us, too.

so kids, don't bother being honest and ethical. it does not pay nearly as well as being dishonest.

I believe we should be as honest and ethical as our exemplary leaders. they set the tone and the pace for what our society is becoming. so take your cue, kids; its not worth it to be honest and decent. lie, cheat, steal and do whatever you want because ITS WHAT OUR LEADERS DO.

"do not as I say but as I do"

WTF?

[Burning1]

If the actions of President Bush has taught us anything over the past 8 years, it's that voting most certainly is NOT pointless. Sure we voted for the wrong guy, but his administration's gross mismanagement of this country showed very clearly that the two parties are not by any means identical, and that your vote for a president can have a very real impact on the policies that are put into place.

At this point, I can only wish that we had an ineffective president who did not accomplish anything in the white house for the last 8 years. We would be a lot better off right now.

Publicise this in KY and wreck his career.

[plasmacutter]

Publicise this despicable action and watch bunning struggle to find a job mopping floors in his local elementary school.