Is the White House misleading Congress over a contentious FOIA policy?

The one thing that can be said with any certainty about the Trump administration’s position on transparency is that it is uncertain. Consider the president’s alleged directive to federal agencies that they ignore “oversight requests” from individual Democrat legislators, including ranking members on congressional committees. The directive, allegedly delivered by Uttam Dhillon, Special Assistant to the President, reportedly instructed agencies “not to cooperate” with requests except those from committee chairmen. 

News of the directive sparked outrage in Congress, yet the White House was initially reticent to provide any meaningful clarification. Bipartisan pushback only increased with the revelation of a May 1, 2017 Department of Justice Office of Legal Counsel (OLC) opinion letter, which seemingly corroborated press reports but presented a distorted view of the law. The White House disavowed the OLC opinion letter as a statement of government-wide policy, but a newly-disclosed document from the General Services Administration (GSA) now presents a potentially troubling contradiction to that claim. At worst, it suggests the White House misled Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) in an attempt to allay the senator’s concerns over the congressional inquiry policy.

{mosads}While testifying before the House Committee on Appropriations in May 2017, GSA Acting Administrator Timothy Horne stated that the “[Trump] Administration has instituted a new policy that matters of oversight need to be requested by the Committee chair.”  Although Mr. Horne admitted that the White House had not provided a formal written version of its new policy, he indicated that the GSA was in the process of “formalizing” guidance in light of that policy.  In an effort to investigate the administration’s actual policy, my organization—Cause of Action Institute—sent a Freedom of Information Act (FOIA) request to the GSA seeking access to records concerning the new policy described by Mr. Horne.

When the GSA finally provided its response to our FOIA request, it released only two documents, both of which pre-dated the current administration and were already publicly available. One of those records was a previously-undisclosed April 15, 2009 White House Counsel memo that Cause of Action Institute first published in June 2013, when it exposed the pernicious—and apparently ongoing—practice of “White House equities” review.

Because the GSA failed to locate anything relevant to the Trump administration, we filed an administrative appeal. In response to the appeal, the GSA disclosed two additional documents: a copy of the hotly-debated, but already public, OLC opinion letter and a copy of the agency’s “updated Agency policy dated July 24, 2017,” also known as GSA Order ADM 1040.3. The latter document expressly states that the GSA’s detailed procedures are “consistent with the views of the Agency and the Administration as outlined in the Department of Justice Office of Legal Counsel opinion . . . dated May 1, 2017.”  In other words, the GSA Order states that the OLC opinion letter is the administration’s official policy.

Yet, just four days before the issuance of the GSA Order, White House Director of Legislative Affairs Marc Short told Sen. Grassley that the OLC opinion letter was merely advisory, did “not set forth Administration policy,” and only presented “legal advice consistent with the research of the Congressional Research Service.” Mr. Short’s “commitment of cooperation”—as Grassley’s office described it—was intended to address the senator’s strongly-worded rebuke of the OLC opinion.

When Mr. Short’s letter went public, we expressed reservations about whether the White House had really resolved anything. As we argued, “[t]he fact remains that Executive Branch officials have publicly acknowledged a ‘new policy,’ which appears consistent with the OLC opinion.”  The GSA Order confirms our reservations and, more importantly, contradicts Mr. Short’s representations about the administration’s policy on congressional requests. As far as we are aware, the OLC opinion letter has yet to be rescinded.

Admittedly, Mr. Short’s comments to Grassley could, in fact, represent the administration’s current position, which may have developed ad hoc in response to widespread criticism from Congress and the transparency community. Perhaps the GSA was not kept in the loop and—bureaucracy being what it is—the agency simply failed or did not know to revise its directives. But that raises a host of other concerns about the lack of coordination between the White House and the rest of the Executive Branch, especially on such an important issue as responding to congressional inquiries. In any case, we have written to Mr. Horne to request clarification about the contradiction between the GSA Order and Mr. Short’s letter, and we hope the matter can be corrected.

In the meantime, these developments and the White House’s continued obfuscation of its position on other transparency issues should not be ignored. And the president is not the only one trying to keep secrets. Congress also has gotten in on the game by attempting to block public disclosure of its dealings with the Executive Branch. As The Atlantic described the current situation, there is an all-out “war” against the FOIA. More than ever, the vitality of our Republic requires open and transparent government.

Ryan P. Mulvey is Counsel at Cause of Action Institute, a Washington, D.C. non-profit oversight group advocating for economic freedom and individual opportunity.