About that Letter…

TPM whiffs on Obama’s FOIA dodge

Last night, shortly before Obama took the podium for his prime time press conference on health reform, Gregory Craig, the White House counsel, released a two-page letter listing the dates when a select group of health care executives paid visits to the White House.

The release came after Citizens for Responsibility and Ethics in Washington, a watchdog group, filed suit earlier in the day to compel the Secret Service to fulfill a Freedom of Information Act request CREW filed in June, seeking copies of the Secret Service’s White House visitor logs describing visits by eighteen health industry executives.

The history of whether or not these visitor records are accessible to FOIA requesters is tangled. But in the last three years, three federal district court rulings have held that they should be. Both the Obama and Bush administrations have maintained they are not, and the issue is currently before an appellate court.

Obama was quick to cite Craig’s letter when he was asked, in the course of his presser, about the administration’s refusal to fulfill CREW’s FOIA request. (“My understanding is we just sent a letter out providing a full list of all the executives,” said Obama, brushing back the question.)

While this transparency related development did not get as much attention as have some in the recent past, Talking Points Memo laudably did spotlight the issue, though they missed the mark in a few places.

First off, in an otherwise solid post written earlier in the day, TPM’s Zachary Roth (a onetime CJR staffer) correctly tagged Obama’s refusal to release the visitor logs as being undergirded by the same legal arguments deployed by the Bush administration. But he misidentified the case that birthed the precedent—it was not, as Roth said, Cheney’s energy taskforce fight (which hinged on a less frequently yielded transparency statute, the Federal Advisory Committee Act), but rather a later fight over FOIA requests for visitor logs related to the Abramoff scandal.

TPM’s treatment of Craig’s letter, released less than an hour before Obama’s presser, overcredulously gave the White House’s action this headline: “Obama: We’re Not Keeping Secrets.”

Yes, that’s a fair paraphrase of what the President claimed at his press conference. And it may even be true in regards to the most pertinent information that would have been netted by CREW’s health care executive FOIA request. But, just sticking to the visitor log question, the White House is still keeping plenty of secrets. They have thus far stalled on an earlier CREW request for coal industry executive visit information, and have failed to provide msnbc.com with a complete copy of the records since Obama took office, as the site requested on May 21.

Brian Beutler’s short piece, linked from that headline, makes another big mistake. In that posting, written shortly after the presser wrapped up, Beutler wrote that “The initial call not to release the information came from the Secret Service, but Obama quickly reversed their decision[.]”

It may be accurate to say that the Secret Service made the initial call not to release the information, but given that the Obama administration’s first public brush with the visitor logs question—CREW’s decision to file suit over its denied coal executive request—came a month ago, prompting uncomfortable questions in the briefing room and a review of the administration’s policy to not release the logs, it’s hard to see how further decisions on the logs would be made any way besides how the White House wants.

And it certainly isn’t right to say that “Obama quickly reversed their decision.” As to the “quickly” part, it’s worth noting that the Secret Service originally denied the request on July 7, not yesterday. But ,far more importantly, Obama hasn’t decided to reverse anything. All he’s decided to do is voluntarily release the most pertinent information that would have been contained in the records CREW requested. And while that counts for something, he didn’t reverse the decision to deny the actual request; FOIA requests are for records, not for the information that may be contained within those records, as CREW points out a letter they sent in response to Craig today.

As Craig’s letter makes clear, the White House only provided the health executive information yesterday on a “discretionary” basis, meaning that, for whatever reason, they decided that this time around letting the names out was a better idea than sitting on them. That’s a smart move in advance of a press conference where there’s a good chance the president might field a tough question on the matter, but it doesn’t mean a thing when the chips are really down and a FOIA requestor would like some visitor records that could truly embarrass this (or any future) administration.

And that’s why it’s worth keeping in mind is that the health care executives are merely the request of the day. What’s really at issue is whether this whole class of records should be available via FOIA, which would allow the public to keep tabs on anyone coming in and out of the White House.

Three years ago, TPM gave significant attention to a series of nearly identical FOIA requests—and the lawsuits they spawned once denied—seeking visitor logs related to the Abramoff scandal.

Obama’s decision to release some information from the logs yesterday does nothing to prevent a president from refusing future requests, as Bush did then.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.