Cause of Action FOIA Appeal to GSA re: White House Equities

8/12/2019 Cause of Action FOIA Appeal to GSA re: White House Equities

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C U S EACTIONdvocates for Government ccountability

501 c) 3) Nonprofit Corporation

VIA FIRST CLASS MAILMr. Travis Lewis, Program ManagerU.S. General Services AdministrationFOIA Requester Service Center (HI C)1800 F Street, NW , Room 7308Washington, DC 20405

April 2, 2014

Re: Freedom o Information Act Appeal, FOIA I.Q. 261307Dear Mr. Lewis:

This is an appeal from the action of the U.S. General Services Administration (GSA) onCause of Action's Freedom oflnformation Act (FOIA) request concerning the review of agencydocuments by the Office of White House Counsel- an opaque vetting process that has hinderedpublic access to records across numerous federal agencies. 1Procedural Background

On November 26, 2013, Cause of Action submitted a FOIA request to GSA seekingaccess to records reflecting communications between (1) The Office of White House Counseland the [GSA] FOIA Requester Service Center, and (2) The Office of White House Counsel andthe GSA Office of the General Counsel, concerning the Office of White House Counsel's reviewof agency records from January 1, 2012 to the present? GSA subsequently acknowledgedCause 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-documentrequesters/; 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'sMarch 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 SensitiveDocs, WASH. EXAM R (Mar. 18 2014) http://washingtonexaminer.com/most-transparent-white-house-ever-rewrotethe-foia-to-suppress-po I tically-sens tive-docs/article/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 Mills, 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 NWSuite 650Washington DC 20006 202.499423


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Mr. Travis LewisApril 2, 2014Page2

On January 9, 2014, GSA provided Cause of Action with a final response, releasingforty-seven pages of e-mail between the GSA Office ofGeneral Counsel and the Office ofWhiteHouse Counsel.4 The agency explained that all redactions were made pursuant to the fifth andsixth exemptions ofFOIA 5 U.S.C. [] 552(b)(5) and (6). 5 The Exemption 5 redactions soughtto protect attorney-client communications and deliberative process material. 6 GSA relied onExemption 6 to withhold things like cell phone numbers, direct dial numbers, and non-GSA email addresses. 7 The agency found no responsive documents r e f l e t i n ~ communicationsbetween the GSA FOIA Office and the Office of White House Counsel.Argument

A. The Deliberative Process Privilege Does Not Protect Communications BetweenGSA and the Office of White House Counsel.Cause ofAction challenges any withholding of communications between GSA and theOffice ofWhite House Counsel under the deliberative process privilege. First, the Office ofWhite House Counsel is not subject to the FOIA and therefore cannot engage in inter-agencycorrespondence. Second, the communications in question do not appear to be predecisional anddeliberative. Thus, to the extent that GSA relied upon the privilege to withhold communicationsto and from the Office of White House Counsel,9 GSA erred and Cause ofAction's requestshould be remanded for further processing.As a threshold matter, the use ofExemption 5 is limited to inter-agency or intra-agencymemorandums or letters. 1 The law is well-settled that entities within the immediate WhiteHouse Office, such as the Office ofWhite House Counsel, are not agencies for FOIA purposes.Therefore, the deliberative process privilege may not be used to prevent the disclosure ofcommunications between those entities and federal agencies. The United States District Courtfor the District ofColumbia 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 ofAction (Jan. 9, 2014)[hereinafter Final Response] (enclosed as Exhibit 2).5 d.6 d7

ld8 /d9 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, 1109n.l (D.C. Cir. 2004) ( Although the Executive Office of the President is an agency subject to the FOIA theOffice of the President is not. ) (citation omitted).


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Mr. Travis LewisApril 2, 2014Page 3agency's use of the privilege to redact an e-mail containing White House advice regarding aCongressional hearing and suggestions for responding to [a FOIA] request. 2

Even if the Office of White House Counsel qualifies as an agency for Exemption 5purposes, it is far from clear that the communications that GSA withheld meet the remaining tworequirements of the deliberative process privilege. First, the communications must bepredecisional, that is, antecedent to the adoption of an agency policy. 3 Second, they must bedeliberative, or a direct part of the deliberative ~ r o e s s in that [they] make[] recommendationsor express[] opinions on legal or policy matters 4In this case, e-mails released by GSA to Cause of Action indicate that the Office of WhiteHouse Counsel instructed GSA to provide it with certain FOIA-related material in advance ofany 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 mustsend those records to the Office of White House Counsel for recommendation or comment. 17As 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 asresponsive documents that do not originate from the White House, the related communicationsbetween 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 anemployee 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 ofAdministrative Services thatyou wanted to see the FOIA about renovations to a bathroom at the Department of Interior. ) (on file with Cause ofAction); 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 1993memorandum.7 l18 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. vOffice of Mgmt. & Budget, 598 F. 3d 865, 875 (D.C. Cir. 20 10) (concluding that [t]o the extent the documents atissue in this case neither make recommendations for policy change nor reflect internal deliberations on theadvisability of any particular course of action, they are not predecisional and deliberative despite having beenproduced by an agency that generally has an advisory role ).


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Mr. Travis LewisApril 2, 2014Page4of which would not vitiate the purpose of the privilege, i.e. to enhance the quality of agencydecisions. 2

B. The Attorney Client Privilege Does Not Protect Communications Between GSAand the Office o White House Counsel.Cause ofAction also challenges any withholding of communications between GSA andthe White House under the attorney-client privilege. The attorney-client privilege protectsconfidential communications made by a client to an attorney for the purpose of securingprimarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legalproceeding. 2 In the governmental context, an agency is the client and its departmentalcounsel is the attorney. 22 The privilege properly applies only to communications created in thecontext of an actual attorney-client relationship, and not simply whenever an agencycommunicates with another entity composed of lawyers.23 Indeed, the privilege must be'strictly confined within the narrowest possible limits consistent with the logic of itsprinciple. '24Quite simply, the Office ofWhite House Counsel does not provide legal services to GSA(or to other federal agencies), but rather provides legal assistance to the President and the WhiteHouse staff in their official capacities.25 GSA has not identified any facts or cited any legalauthority that suggests that an attorney-client relationship exists between the agency and theOffice of White House Counsel. Thus, the agency's reliance, if any, upon the attorney-clientprivilege to withhold communications to and from the Office of White House Counsel is clearlyunwarranted.C. Exemption 6 May Have Been Applied Too Broadly.As noted above, GSA reportedly invoked Exemption 6 to withhold only cell phonenumbers, direct dial numbers, and non-GSA e-mail address. 26 Cause ofAction does notchallenge the applicability ofExemption 6 to such information. But the agency's reliance uponExemption 6 to redact the entire content of an e-mail concerning Media Inquiries on Bonuses,

20 See Nat' I Labor Relations Bd. v Sears, Roebuck Co., 421 U.S. 132, 151 (1975) (observing that the ultimatepurpose ofthis long-recognized privilege is to prevent injury to the quality of agency decisions ).21 In reSealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984).22 See Tax Analysts v Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997).23 See Brinton v Dep't of State, 636 F.2d 600, 603 (D.C. Cir. 1980) ( [T]he attorney-client privilege applies onlywhen information is the product of an attorney-client relationship and is maintained as confidential between attorneyand client. ).24 In re Lindsey, 148 F.3d 1100, 1108 (D.C. Cir. 1998) (citation omitted),25 In re Lindsey, 158 F.3d 1263, 1268 n 1 (D.C. Cir. 1998) (referencing White House Counsel's declaration thatWhite House Counsel' s Office provides confidential counsel to the President in his official capacity, to the WhiteHouse as an institution, and to senior advisors about legal matters that affect the White House's interests ).26 Final Response, supra note 4.


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Mr. Travis LewisApril2, 2014Page 5Salaries, and Resumes is highly suspect? f this e-mail contains the names of federalemployees and their positions, salaries, or bonuses, that information should be disclosed inaccordance with Office of Personal Management regulations.28

Encls.

Thank you for your attention to this matter.Sincerely,

ALLAN BLUTSTEINMANAGING COUNSEL

27 E-mail from Dan Cruz, Deputy Press Sec'y, U.S. Gen. Servs. Admin., to Eric Schultz, Deputy Press Sec'y, WhiteHouse (Nov. 20, 2012) (on file with Cause of Action).28 5 C.F.R 293.311 (a) (OPM regulation specifying information in personnel files accessible by the public).

Documents

Cause of Action FOIA Appeal to GSA re: White House Equities