In October of 2006, a federal district court judge ruled that White House visitor logs fell under the reach of the Freedom of Information Act. In December of 2007, another district judge agreed. And just this January, the same judge issued a similar opinion in another case.
Despite all those adverse rulings, and despite their many promises to operate with unprecedented transparency, the Obama administration is continuing to insist that the records are not subject to FOIA requests.
In a pair of nearly identical letters this month, one sent to a reporter at msnbc.com, and another sent to Citizens for Responsibility and Ethics in Washington, a watchdog group, the Secret Service—which maintains the records—is insisting that the documents are official presidential records, and therefore aren’t theirs to release.
It’s the same claim made by the Bush administration and ruled wanting three times by the judges, one that relies on a president’s authority to keep records created by White House staff out of FOIA’s reach until well after the end of their administration.
“I though it was an extreme position for the Bush White House, but it was consistent with their fight for secrecy,” says Anne Weismann, CREW’s senior counsel.
But for the Obama administration to make the same claim?
“It’s hugely disappointing,” says Weismann.
Bill Dedman, an investigative reporter at msnbc.com, considered his denied request for the complete logs since Obama took office as a test case.
“I knew visitor logs had been an issue in the previous administration, so I wanted to see how the new administration would handle it,” he says. “And we both got identical denials.”
“The fact that they were a few days apart leads me to believe that this was a carefully considered decision,” says Weismann, who as a senior Justice Department lawyer oversaw all FOIA litigation from 1995 to 2002.
On Wednesday, White House spokesperson Robert Gibbs told reporters that the administration was actively reconsidering the Bush policy. But in absence of any change in action, Dedman plans to file an administrative appeal, and CREW has taken the matter to federal district court.
The organization had asked the Secret Service for records detailing the White House comings and goings of sixteen coal industry executives since Obama became president. The newest suit will mark CREW’s fourth lawsuit on the visitor records, dating back to a request the outfit made for information on lobbyist Jack Abramoff’s visits to the White House.
On May 10, 2006, after much press attention to Abramoff’s visits, and three months after that initial FOIA request, CREW filed suit to compel production of the documents. The Democratic National Committee and Judicial Watch filed similar suits.
The White House eventually released those records to Judicial Watch, but not as a result of a court order. The move left FOIA’s applicability to the records an open question.
In June, after CREW filed its Abramoff suit, reporter Jo Becker filed a FOIA request seeking records of visitors to Vice President Cheney’s office. (Becker, then with the Washington Post, was at work with Barton Gellman on their Cheney series that would go on to win a Pulitzer.) The Secret Service cited a new reason why the request couldn’t be filled: the records were presidential records as defined by the Presidential Records Act, which allows presidents great control of documents created by White House staff, years after their administration has left office.
To defend this position, the Secret Service cited an undisclosed memorandum with the White House claiming that the agency regarded the documents as privileged presidential records. Its date? May 17, 2006, exactly one week after CREW’s Abramoff suit had been filed.
While the document purported to memorialize longstanding procedure, there’s evidence besides the timing that suggests the doctrine was birthed anew. Anecdotally, Weismann says a journalist told her they had no trouble getting the visitor records before Bush. But, more substantially, under the Clinton administration portions of the logs were released as agency records during discovery in a civil case, and no presidential privilege was claimed. And after CREW and others filed their initial requests with the Secret Service, they were told that the request was being normally processed.
The Bush administration would apply this claim to The Washington Post’s case and to two further CREW FOIA actions (one seeking information on visits by religious leaders, another on a Bush presidential library fundraiser), only to have it dismissed each time.
The government argued that the Secret Service, even though its database housed the records and its staff entered the data, was not the creator of the records. In his December 2007 decision, D.C. District Court Judge Royce Lamberth wrote that he was “not convinced” by the government’s “more nuanced” definition of creation: that the information about the visitor was often, though not always, provided by a member of the White House staff, making them the creators of the records.
Even though this anti-disclosure defense has been found wanting three times, with this month’s fresh denials—and early appellate motions by the Obama Justice Department in one of CREW’s outstanding cases—the Bush rationale is now also Obama’s.
The denials note the litigation and promise to revisit the question after resolution “if necessary.”
If Dedman does get the records, he has a few ideas about what msnbc.com would likely do with them, offering a contrast to how, in an earlier Internet era, news organizations treated another White House list—the friends and donors who the Clintons invited to be guests in the Lincoln Bedroom: “They just put it online.”
“You want to allow people, to search, to browse,” says Dedman. “You’d want to have people be able to say ‘show me people who have coal attached to their name.’”
“We would certainly publish it in some interactive way that would use the medium and offer readers a way to make a contribution,” he says, suggesting that the site might allow moderated comments where users could offer links to news stories or pending legislation that might shed light on a person’s reasons for visiting.
It would be a modern way to present the records, if only there was an administration ready to release them.Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.