Policy and News Updates for September 6, 2007

Policy Updates

In This Issue:

I. White House changes policy to avoid disclosure


I. White House changes policy to avoid disclosure
Rather than complying with a request to make public its information about 5 million missing emails, the White House has declared the Office of Administration (OA) exempt from the Freedom of Information Act (FOIA).

Citizens for Ethics in Washington (CREW) filed a FOIA request with the White House’s OA for records that would document the White House’s knowledge of the missing emails, 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 emails were purposefully deleted. In response, the Justice Department declared that the OA is not subject to FOIA. CREW is suing the White House Office of Administration for failing to respond to their request.

At least 5 million emails went missing from March 2003 to October 2005, according to a report by CREW. The missing emails were discovered by the White House in 2005, according to a briefing given to House Oversight and Government Reform Committee staff by Keith Roberts, the Deputy General Counsel of the White House Office.

Rep. Henry Waxman [D-CA], Chairman of the House Oversight and Reform Committee, is demanding that the OA turn over its analysis of the email system, conducted by the Office of the Chief Information Officer. According to the letter Rep. Waxman sent to White House Counsel Fred Fielding on Aug. 30, Mr. Roberts informed the Oversight Committee that an unidentified company working for the Information Assurance Directorate of the Office of the Chief Information Officer was responsible for daily audits of the e-mail system and the e-mail archiving process. According to Rep. Waxman’s letter, Mr. Roberts was not able to explain why the daily audits conducted by this contractor did not detect the problems in the archive system when they first began. The revelation that there were daily audits suggests that e-mails were destroyed, Anne Weismann, general counsel of CREW, told Bloomberg News.

Recently, the White House changed its FOIA website to exclude the OA from White House entities subject to FOIA. A note in the FOIA sections of the OA website now says, "The Office of Administration, whose sole function is to advise and assist the President, and which has no substantial independent authority, is not subject to FOIA and related authorities." Under Office of Administration’s FOIA Regulations, it says, "The OA’s Regulations concerning FOIA are currently being updated." OA’s annual FOIA reports are available on the White House website for 1996-2006. In 2006, OA processed 65 requests and spent $87,772 on FOIA processing (including appeals).


The National Security Archive, an OpenTheGovernment.org coalition partner, filed a lawsuit yesterday, Sept. 5, in the U.S. District Court for the District of Columbia against the White House seeking the recovery and preservation of the emails.


News from Coalition Partners and Others

Report Finds Expanded Federal Government Secrecy in 2006
OpenTheGovernment.org released the Secrecy Report Card 2007 on Sept. 1. The Secrecy Report Card, which is produced annually in order to identify trends in public access to information, found a troubling lack of transparency in military procurement, assertions of executive privilege, and expansion of "sensitive" categories of information, among other areas. Read the press release. The report cites many indicators of growing secrecy, including:

    • Classification activity still remains significantly higher than before 2001. In 2006, the number of original classification decisions decreased to 231,995, down from 258,633 in 2005. This is the second year in a row that the number of original classification decisions has dropped, but numbers remain significantly higher than before 2001.
    • In 2006, 26 percent ($107.5 billion) of federal contracts dollars were completely uncompeted; only one-third of contracts dollars are subject to full and open competition.
    • A 2007 Justice Department Office of the Inspector General report on secret wiretap warrants indicated that the government made 143,074 National Security Letter requests in the period 2003-2005. The number for 2006 remains classified. These requests can be used to obtain information about individuals without the government applying for a court-reviewed warrant.

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