The rewrite came in an April 15, 2009, memo from then-White House Counsel Greg Craig instructing the executive branch to let White House officials review any documents sought by FOIA requestors that involved “White House equities.”
That phrase is nowhere to be found in the FOIA, yet the Obama White House effectively amended the law to create a new exception to justify keeping public documents locked away from the public.
A serious breach
The Greg memo is described in detail in a new study made public today by Cause of Action, a Washington-based nonprofit watchdog group that monitors government transparency and accountability.
How serious an attack on the public’s right to know is the Obama administration’s invention of the “White House equities” exception?
“FOIA is designed to inform the public on government behavior; White House equities allow the government to withhold information from the media, and therefore the public, by having media requests forwarded for review. This not only politicizes federal agencies, it impairs fundamental First Amendment liberties,” Cause of Action explains in its report.
Equities are everything
The equities exception is breathtaking in its breadth. As the Greg memo put it, any document request is covered, including “congressional committee requests, GAO requests, judicial subpoenas and FOIA requests.”
And it doesn’t matter what format the documents happen to be in because, according to Greg, the equities exception “applies to all documents and records, whether in oral, paper, or electronic form, that relate to communications to and from the White House, including preparations for such communications.”
Forget making FOIA deadlines
The FOIA requires federal agencies to respond within 20 days of receiving a request, but the White House equities exception can make it impossible for an agency to meet that deadline.
In one case cited by Cause of Action, the response to a request from a Los Angeles Times reporter to the Department of the Interior for “communications between the White House and high-ranking Interior officials on various politically sensitive topics” was delayed at least two years by the equities review.
“Cause of Action is still waiting for documents from 16 federal agencies, with the Department of Treasury having the longest pending request of 202 business days.
“The Department of Energy is a close second at 169 business days. The requests to the Department of Defense and Department of Health and Human Services have been pending for 138 business days,” the report said.