And the IRS only communicated its failure to find any responsive records two years after CoA Institute submitted its request and filed a lawsuit. All those agencies produced the requested records only the IRS failed to locate a single relevant document. Similar requests were sent to eleven other agencies. The specific FOIA request at issue in this case, which was submitted to the IRS in May 2013, sought records of communications between IRS officials and the White House reflecting “White House equities” consultations. As we have previously suggested, “White House equities” review likely continues under the Trump Administration. Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines. Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.Īs part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review. This secret memo stands in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo. In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “ White House equities” when collected in response to any sort of document request. The case is a fine example of how courts too frequently defer to agencies when it comes to policing their compliance with the FOIA.īackground: “White House equities” review and FOIA politicization Although we do not intend to appeal the decision, it is worth highlighting some issues with Judge Sullivan’s opinion and the IRS’s arguments. The opinion was long awaited-summary judgment briefing ended over a year-and-an-half ago. District Court for the District of Columbia issued an order denying Cause of Action Institute’s (“CoA Institute”) cross-motion for summary judgment in a Freedom of Information Act (“FOIA”) brought against the Internal Revenue Service (“IRS”).
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