C USE
ACTION
dvocates for Government ccountability
501 c) 3)
Nonprofit Corporation
VIA FIRST CLASS MAIL
Mr. Travis Lewis, Program Manager U.S. General Services Administration FOIA Requester Service Center (HI C) 1800 F Street,
NW
, Room 7308 Washington, DC 20405 April 2, 2014
Re: Freedom
o
Information Act Appeal, FOIA I.Q. 261307
Dear Mr. Lewis: This is an appeal from the action
of
the U.S. General Services Administration (GSA)
on
Cause
of
Action's Freedom oflnformation Act (FOIA) request concerning the review
of
agency documents by the Office
of
White House Counsel-an opaque vetting process that has hindered public access to records across numerous federal agencies.
1
Procedural Background
On
November 26, 2013, Cause
of
Action submitted a FOIA request to GSA seeking access to records reflecting communications between (
1)
The Office
of
White House Counsel and the [GSA] FOIA Requester Service Center, and (2) The Office
of
White House Counsel and the GSA Office
of
the General Counsel, concerning the Office
of
White House Counsel's review
of
agency records from January
1,
2012 to the present? GSA subsequently acknowledged Cause
of
Action's request and assigned it FOIA I.Q. tracking number 261307.
3
1
ee
CAUSE
OF
ACTION,
GRADING
THE
GOVERNMENT:
HOW
THE
WHITE
HOUSE TARGETS DOCUMENT REQUESTERS
(Mar.
18,
2014),
available at
http://causeofaction.org/grading-government-white-house-targets-document
requesters/;
see also
C.J. Ciaramella,
Report: White House Review Hindering FOIA Releases,
FREE BEACON
(Mar. 21, 20
14),
http://freebeacon.com/report-white-house-review-hindering-foia-releases/ (discussing Cause
of
Action's March
18,
2014 report); Aaron Stern,
Report: Obama Administration Skirted FOIA From the Start,
NEWSMAX
(Mar. 20,
20
14), http://www .newsmax.com/newsfront/obama-foia-wh ite-house-2009-memo/
20
14
/
03
/20/id/560781
(same); Mark Tapscott,
Most Transparent White House Ever Rewrote the FO/A
o
Suppress Politically Sensitive Docs,
WASH.
EXAM R
(Mar.
18
20
14)
http://washingtonexaminer.com/most-transparent-white-house-ever-rewrote
the-foia-to-suppress-po I tically-sens
ti
ve-docs/artic
le
/2545 824 (same).
2
Letter from Cause
of
Action to Ralph
L.
Boldt,
FOIA
Public Liaison,
U.S.
Gen. Servs. Admin. (Nov. 26, 2013) (enclosed
as
Exhibit 1 .
3
E-mail
from
Kevin Mill
s,
FOIA Requester Servs. Ctr
.,
U.S.
Gen
. Servs. Admin.,
to
Cause
of
Action (Nov. 26, 2013) (on
file
with Cause
of
Action).
1919
Pennsylvania
Ave
NW
Suite
650
Washington
DC
20006 202.499·4232
Mr. Travis Lewis April 2, 2014
Page2
On January 9, 2014, GSA provided Cause
of
Action with a final response, releasing forty-seven pages
of
e-mail between the GSA Office
of
General Counsel and the Office
of
White House Counsel.
4
The agency explained that all redactions were made pursuant to the fifth and sixth exemptions
ofFOIA
5 U.S.C.
[§]
552(b)(5) and (6).
5
The Exemption 5 redactions sought to protect attorney-client communications and deliberative process material.
6
GSA relied
on
Exemption 6 to withhold things like cell phone numbers, direct dial numbers, and non-GSA email addresses.
7
The agency found no responsive documents
refle tin~
communications between the GSA FOIA Office and the Office
of
White House Counsel.
Argument
A.
The
Deliberative Process Privilege Does Not Protect Communications Between GSA
and
the Office
of
White House Counsel.
Cause
of
Action challenges any withholding
of
communications between GSA and the Office
of
White House Counsel under the deliberative process privilege. First, the Office
of
White House Counsel is not subject to the FOIA and therefore cannot engage in inter-agency correspondence. Second, the communications in question do not appear to be predecisional and deliberative. Thus, to the extent that GSA relied upon the privilege to withhold communications to and from the Office
of
White House Counsel,
9
GSA erred and Cause
of
Action's request should be remanded for further processing. As a threshold matter, the use
of
Exemption 5 is limited to inter-agency or intra-agency memorandums or letters.
1
The law is well-settled that entities within the immediate White House Office, such as the Office
of
White House Counsel, are not agencies for FOIA purposes. Therefore, the deliberative process privilege may not be used to prevent the disclosure
of
communications between those entities and federal agencies. The United States District Court for the District
of
Columbia reached the same conclusion
in
a recent case in which it rejected an
Letter from Travis Lewis, FOIA Program Manager, U.S. Gen. Servs. Admin., to Cause
of
Action (Jan. 9, 2014) [hereinafter Final Response] (enclosed as Exhibit 2).
5
d
.
6 d
7
ld
8
/d
9
See e.g.
E-mail from Seth Greenfeld, Senior Assistant Gen. Counsel, U.S. Gen. Servs. Admin., to Jonathan Su, Assoc. Counsel to the President, White House (May
1
2012) (on file with Cause
of
Action).
10
5 U.S.C. § 552(b)(5).
11
Id
§
552(f)(l) (defining the term agency );
see also
Judicial Watch, Inc.
v.
Dep't
of
Justice, 365 F.3d 1108, 1109
n.l
(D.C. Cir. 2004) ( Although the Executive Office
of
the President
is
an agency subject to the FOIA the Office
of
the President
is
not. ) (citation omitted).
Mr. Travis Lewis April 2, 2014 Page 3 agency's use
of
the privilege to redact an e-mail containing White House advice regarding a Congressional hearing and suggestions for responding to [a FOIA] request.
2
Even
if
the Office
of
White House Counsel qualifies as an agency for Exemption 5 purposes, it is far from clear that the communications that GSA withheld meet the remaining two requirements
of
the deliberative process privilege. First, the communications must be predecisional, that is, antecedent to the adoption
of
an agency policy.
3
Second, they must be deliberative, or
a
direct part
of
the deliberative
~ro ess
in that [they] make[] recommendations or express[] opinions on legal or policy matters
4
In this case, e-mails released by GSA to Cause
of
Action indicate that the Office
of
White House Counsel instructed GSA to provide it with certain FOIA-related material in advance
of
any agency processing.
5
This reflects a clear departure from the FOIA procedures that the Department
of
Justice (DOJ) set forth in a 1993 memorandum.
6
Pursuant to those procedures, an agency that locates White House-originated records in response to a FOIA request must send those records to the Office
of
White House Counsel for recommendation or comment.
17
As
DOJ's
memorandum noted, these procedures prescribe
'consultations. '
8
When, as here, the Office
of
White House Counsel preemptively screens an agency's FOIA requests, as well as responsive documents that
do
not originate from the White House, the related communications between the agency and the Office
of
White House Counsel are unlikely to reflect the give-andtake
of
the consultative process that exemplifies the deliberative process privilege.
19
Rather, such communications are more likely to reflect directives from the White House, the disclosure
12
Judicial Watch, Inc.
v
Consumer Fin. Prot. Bureau, No. I: 12-cv-00931, 2013 U.S. Dist. LEXIS 140455,
at*
13,
15
(D. D.C. Sept. 30, 2013) (finding that the privilege could not be used unless the source
of
the e-mail was an employee
of
a White House office that was subject to FOIA).
3
Ancient Coin Collectors Guild v. Dep't
of
State,
641
F.3d 504, 513 (D.C. Cir. 2011).
4
Vaughn
v
Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
5
See
E-mail from Seth Greenfeld, Senior Assistant Gen. Counsel, U.
S
Gen. Servs. Admin., to Jonathan Su, Assoc.
Counsel to the President, White House (Apr. 12, 2013) ( I was told by our Office
of
Administrative Services that you wanted to see the FOIA about renovations to a bathroom at the Department
of
Interior. ) (on file with Cause
of
Action); E-mail from Seth Greenfeld, Senior Assistant Gen. Counsel, U.S. Gen. Servs. Admin., to Jonathan Su, Assoc. Counsel to the President, White House (May I, 2012) ( Per your
request,
here are the five FOIA requests. (emphasis added)) (on file with Cause
of
Action).
6
See FOIA Update,
Vol. XIV,
No.3,
at 6-8,
available at
http://www.justice.gov/oip/foia_updates/Vol_XIV _3/page4.htm. DOJ has not updated or retracted its 1993
memorandum.
7
l
18
l
(emphasis added).
9
Coastal States Gas Corp.
v
Dep't
of
Energy, 617 F.2d 854, 867 (D.C. Cir. 1980);
see also
Public Citizen, Inc.
v
Office
of
Mgmt.
&
Budget, 598 F. 3d 865, 875 (D.C. Cir. 20 10) (concluding that [t]o the extent the documents at issue
in
this case neither make recommendations for policy change nor reflect internal deliberations on the advisability
of
any particular course
of
action, they are not predecisional and deliberative despite having been produced by an agency that generally has an advisory role ).