White House equities: the new executive privilege.

Author:Rozell, Mark J.
Position:The Law - Report

In March 2010, Catherine Papoi, then the deputy unit chief in charge of the Freedom of Information Act (FOIA) at the U.S. Department of Homeland Security (DHS), complained to the inspector general that the DHS, under a directive signed by chief privacy officer Mary Ellen Callahan, "had illegally sidetracked hundreds of requests from journalists, watchdog groups and others for federal records" in order for proposed productions to be reviewed by political officials before responses were made (Bridis 2011). Ms. Papoi, it was alleged, was subsequently demoted for making this complaint (Bridis 2011). Representative Darrell Issa, chairman of the House Oversight and Government Reform Committee, seized on the alleged retaliation as symbolic of politicization and obstruction at a federal agency (Bridis 2011). The Papoi case eventually percolated into a March 2011 congressional hearing focused on "allegations that DHS routinely delayed requests made by journalists and activists under the Freedom of Information Act" (Radnofsky 2011). Issa claimed that political appointees at DHS interfered in the FOIA process (Radnofsky 2011).

But recent reports suggest that Congress may have missed the forest for the trees. These reports suggest that DHS and every other federal agency, in having political staff injected into the FOIA process, were simply following established guidance. This established guidance, originating from the White House, surfaced nearly three years after Issa's 2011 hearing. Since April 2009, the administration has required every department and agency general counsel to consult with the White House's lawyers on FOIA requests that were of interest to the White House (Ciaramella 2014). DHS was just one instance of a whole host of federal agencies--the Internal Revenue Service, the Department of Defense, the Department of Housing and Urban Development, and the Department of Veterans Affairs--which, under the advice of White House counsel, have "been actively working to thwart the release of documents by politicizing FOIA" (Ciaramella 2014). (1)

Although scholars have examined the concept of executive privilege, the executive branch concept of "White House equities" has escaped scholarly attention. Despite the term's prominence during the latest two presidential administrations, White House equities are not statutorily or otherwise defined. In 2009, the White House's own counsels interpreted White House equities to include "communications to the White House or agency documents created in preparation for communication with the White House" (Roberts 2009, 54). In 2010, the inspector general for the U.S. Department of the Treasury defined White House equities as being involved "when a member of the White House staff was a recipient or a commenter in an e-mail chain" (Thorson 2010, n.3).

Independent of how "equities" are defined, records classified under the term provide a justification for the president to assert executive privilege to justify the withholding or redaction of records sought from requesters, including members of Congress, courts, the U.S. Government Accountability Office (GAO) and those filing requests under FOIA. But challenging how the White House inserts itself into the review process of FOIA is intrinsically elusive, considering that the White House is not subject to FOIA.

Brief History of White House Equities

The origins of the White House's interest in claiming privilege over records requested under FOIA dates back to 1988, when the Department of Justice's (DOJ's) Office of Legal Policy informed FOIA and Privacy Act contacts at all federal agencies that "[r]ecords originating with or involving the 'White House Office' should be forwarded to the Office of the Counsel to the President for any recommendations or comments it may wish to make prior to your final response to the requester" (Markman 1988). Soon after President Bill Clinton took office, his Associate Attorney General Webster L. Hubbell sent a memorandum to the principal FOIA administrative and legal contacts at all federal agencies regarding the "FOIA consultation procedures required for any White House-originated record or information found in agency files" (U.S. DOJ 1993). More recently, in 2011, DOJ's Office of Information Policy issued guidance:

There are several situations where it is appropriate for agencies to consult with another agency or entity which holds an interest in the documents that are the subject of a FOIA request. This most commonly arises when an agency locates records in response to a request that originated with the agency, but which contain within them information of interest to another agency or another component. In those situations, the agency processing the request should consult with that other agency, or equity holder, to obtain its views prior to disclosure of the records (U.S. DOJ 2011).

Over the years, White House counsels would informally advise agencies that certain documents responsive to a FOIA request may raise Exemption 5 issues (concerning inter- and intra-agency memos) that would not need to be subject to executive privilege. Exemption 5 is discussed in greater detail in the section on "Presidential Communications Privilege." The use of the phrase "White House-originated" did at least place an important parameter around the types of records subject to a privilege claim. But that limitation did not last, as an Obama White House memorandum expanded the parameters to include anything with "equities"--meaning that the White House can claim privilege over documents at other agencies, not just those originating from the White House's own offices. Specifically, on April 15, 2009, White House Counsel Gregory Craig issued a memorandum that stated,

[E]xecutive agencies should consult with the White House Counsel's Office on all document requests that may involve documents with White House equities.... This need to consult with the White House arises with respect to all types of document requests, including Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests. And it applies to all documents and records, whether in oral, paper, or electronic form, that relate to communications to and from the White House, including preparations for such communications. (Craig 2009)

On the basis of this memorandum, federal agency FOIA offices are required to consult with the White House concerning proposed responses to requests involving White House equities.

The Craig memorandum establishes a much broader policy of consultation with the White House and, unlike previous consultation requests to federal agencies, was sent from the White House--not the DOJ--to federal agencies and departments.

Deciphering White House Equities from Public Discussion

The public record concerning the assertion of White House equities is sparse. During a July 24, 2007, hearing before the U.S. Senate Judiciary Committee to investigate the firing of U.S. attorneys for alleged partisan reasons, former Attorney General Alberto Gonzales, in response to a question from Senator Ben Cardin (D-MD), responded, "Senator, you're asking me questions that really touch upon White House equities, and that will be a decision made at the White House, a decision that I won't--in most cases, will not be able to control" (Gonzales 2007). In a February 26, 2008, memorandum from a hearing entitled "Electronic Records Preservation at the White House," the Democratic majority staff of the House Oversight and Government Reform Committee concluded that "the White House directed the National Archives to withhold a range of documents that contained White House equities" (U.S. House of Representatives 2008, 21). In a June 20, 2008, letter from the Environmental Protection Agency (EPA) to House Oversight chairman Henry Waxman, the EPA stated, "The documents or portions of documents over which the President is asserting executive privilege identify communications or meetings between senior EPA staff and White House personnel, or otherwise evidence information solicited or received by senior White House advisors.... The Committee has received over 10,000 of the Agency's documents concerning both of these matters (including the vast majority of documents implicating White House equities)" (Bliley 2008).

Despite both the Obama White House and the DOJ making public their pledges toward open government, the Craig memorandum on White House equities was never made public (Office of the President 2009; U.S. DOJ 2009). There are currently no data on how often the White House has claimed executive privilege on the basis of White House equities. Discussions of White House equities in the intergovernmental oversight context exist in the public domain. To illustrate, in late 2009, the U.S. Department of the Treasury established a formal level of review above its disclosure officer for "sensitive information." According to the inspector general of the U.S. Treasury, "documents subject to the sensitive information review process have been provided to the White House Office of Counsel for review and comment" (Thorson 2010, n.3). In a March 31, 2011, House Oversight Committee hearing entitled, "Why Isn't the Department of Homeland Security Meeting the President's Standard on FOIA?" Mary Ellen Callahan, the Chief Privacy Officer of the DHS, stated, "anything that has White House equities would require White House review" (Callahan 2011). Again, in 2011, in response to a subpoena by House Energy and Commerce Committee Chairman Fred Upton...

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