September 4, 2007

Contact: Naomi Seligman Steiner 202.408.5565 nseligman@citizensforethics.org

4 Sep 2007 // Today, Citizens for Responsibility and Ethics in Washington (CREW) filed an opposition to the government’s motion for judgment on the pleadings in CREW v. Office of Administration (OA). OA has argued that it is not an agency subject to the Freedom of Information Act (FOIA) because it solely advises and assists the president. OA makes this argument in its response to CREW’s FOIA request for records that would document the White House’s knowledge of millions of missing email, its failure to restore the email or put in place an electronic record-keeping system that would prevent this problem, and the possibility that the email were purposefully deleted.

As outlined in the brief, OA’s argument is factually and legally wrong. Specifically:

• The executive orders establishing OA provide expressly that it is to provide administrative support to all components of the Executive Office of the President (“EOP”) except the president (EO 12028).
• The executive orders give to OA’s director the authority to act as the president would (EO 12122).
• It is therefore clear that far from advising and assisting only the president, OA advises and assists all EOP components except for the president and exercises considerable independent authority.
• OA has also held itself out consistently as subject to the FOIA.
• OA has published FOIA regulations since 1980 that make clear OA is required under the FOIA to provide public access to its records.
• Until this weekend, the White House’s own website stated that OA is an agency subject to the FOIA.
• OA’s website contains annual FOIA reports the agency is required by law to submit.
• The Department of Justice’s website (under FOIA) lists an agency FOIA contactor OA.
• In 1996, OA filed a brief in the Supreme Court in Armstrong v. EOP, arguing that EO 12122 gives the director of OA “a broad delegation of authority” and explaining that OA’s duties do not include the president.