~

~ C U S E
' ofACTION
Advocates for Government Accountability
A 501(c)(3) Nonprofit Corporation
VIA FIRST CLASS MAIL
Mr. Travis Lewis, Program Manager
U.S. General Services Administration
FOIA Requester Service Center (HI C)
1800 F Street, NW, Room 7308
Washington, DC 20405
April 2, 2014
Re: Freedom of Information Act Appeal, FOIA I.Q. # 261307
Dear Mr. Lewis:
This is an appeal from the action of the U.S. General Services Administration (GSA) on
Cause of Action's Freedom oflnformation Act (FOIA) request concerning the review of agency
documents by the Office of White House Counsel- an opaque vetting process that has hindered
public access to records across numerous federal agencies.
1
Procedural Background
On November 26, 2013, Cause of Action submitted a FOIA request to GSA seeking
access to "records reflecting communications between ( 1) The Office of White House Counsel
and the [GSA] FOIA Requester Service Center, and (2) The Office of White House Counsel and
the GSA Office of the General Counsel, concerning the Office of White House Counsel's review
of agency records" from January 1, 2012 to the present? GSA subsequently acknowledged
Cause of Action's request and assigned it FOIA I.Q. tracking number 261307.
3
1
See 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-document-
requesters/; 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's
March 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 I
(same); Mark Tapscott, 'Most Transparent' White House Ever Rewrote the FO/A To Suppress Politically Sensitive
Docs, WASH. EXAM'R (Mar. 18 20 14) http://washingtonexaminer.com/most-transparent-white-house-ever-rewrote-
the-foia-to-suppress-po I itically-sens iti ve-docs/artic le/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, NW
Suite 650
Washington, DC 20006
--------==-- 202.4994232
Mr. Travis Lewis
April 2, 2014
Page2
On January 9, 2014, GSA provided Cause of Action with a final response, releasing
forty-seven pages of e-mail between the GSA Office of General Counsel and the Office of White
House Counsel.
4
The agency explained that all redactions were made pursuant to "the fifth and
sixth exemptions ofFOIA, 5 U.S.C. [] 552(b)(5) and (6)."
5
The Exemption 5 redactions sought
to protect "attorney-client communications and deliberative process material."
6
GSA relied on
Exemption 6 to withhold "things like cell phone numbers, direct dial numbers, and non-GSA e-
mail addresses."
7
The agency found no responsive documents communications
between the GSA FOIA Office and the Office of White House Counsel.
Argument
A. The Deliberative Process Privilege Does Not Protect Communications Between
GSA and the Office of White House Counsel.
Cause of Action challenges any withholding of communications between GSA and the
Office of White House Counsel under the deliberative process privilege. First, the Office of
White House Counsel is not subject to the FOIA and therefore cannot engage in "inter-agency"
correspondence. Second, the communications in question do not appear to be predecisional and
deliberative. Thus, to the extent that GSA relied upon the privilege to withhold communications
to and from the Office of White House Counsel,
9
GSA erred and Cause of Action's request
should be remanded for further processing.
As a threshold matter, the use of Exemption 5 is limited to "inter-agency or intra-agency
memorandums or letters."
10
The law is well-settled that entities within the immediate White
House Office, such as the Office of White House Counsel, are not agencies for FOIA purposes.
11
Therefore, the deliberative process privilege may not be used to prevent the disclosure of
communications between those entities and federal agencies. The United States District Court
for the District of Columbia reached the same conclusion in a recent case in which it rejected an
4
Letter from Travis Lewis, FOIA Program Manager, U.S. Gen. Servs. Admin., to Cause of Action (Jan. 9, 2014)
[hereinafter Final Response] (enclosed as Exhibit 2).
5 /d.
6/d
7
ld
8 /d.
9
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, 1109
n.l (D.C. Cir. 2004) ("Although the Executive Office of the President is an agency subject to the FOIA ... the
Office of the President is not.") (citation omitted).
Mr. Travis Lewis
April 2, 2014
Page 3
agency's use of the privilege to redact an e-mail containing "White House ... advice regarding a
Congressional hearing and ... suggestions for responding to [a FOIA] request."
12
Even if the Office of White House Counsel qualifies as an agency for Exemption 5
purposes, it is far from clear that the communications that GSA withheld meet the remaining two
requirements of the deliberative process privilege. First, the communications must be
predecisional, that is, "antecedent to the adoption of an agency policy."
13
Second, they must be
deliberative, or "a direct part of the deliberative ~ r o e s s in that [they] make[] recommendations
or express[] opinions on legal or policy matters"
4
In this case, e-mails released by GSA to Cause of Action indicate that the Office of White
House Counsel instructed GSA to provide it with certain FOIA-related material in advance of
any agency processing.
15
This reflects a clear departure from the FOIA procedures that the
Department of Justice (DOJ) set forth in a 1993 memorandum.
16
Pursuant to those procedures,
an agency that locates "White House-originated" records in response to a FOIA request must
send those records to the Office of White House Counsel for "recommendation or comment."
17
As DOJ's memorandum noted, these procedures "prescribe 'consultations."'
18
When, as here,
the Office of White House Counsel preemptively screens an agency's FOIA requests, as well as
responsive documents that do not originate from the White House, the related communications
between the agency and the Office of White House Counsel are unlikely to reflect the "give-and-
take 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 an
employee of a White House office that was subject to FOIA).
13
Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011).
14
Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
15
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 of Administrative Services that
you wanted to see the FOIA about renovations to a bathroom at the Department of Interior.") (on file with Cause of
Action); 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).
16
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 1993
memorandum.
17 ld
18
ld (emphasis added).
19
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980); see also Public Citizen, Inc. v.
Office of Mgmt. & Budget, 598 F. 3d 865, 875 (D.C. Cir. 20 10) (concluding that "[t]o the extent the documents at
issue in this case neither make recommendations for policy change nor reflect internal deliberations on the
advisability of any particular course of action, they are not predecisional and deliberative despite having been
produced by an agency that generally has an advisory role").
Mr. Travis Lewis
April 2, 2014
Page4
of which would not vitiate the purpose of the privilege, i.e., to enhance the quality of agency
decisions.
20
B. The Attorney-Client Privilege Does Not Protect Communications Between GSA
and the Office of White House Counsel.
Cause of Action also challenges any withholding of communications between GSA and
the White House under the attorney-client privilege. The attorney-client privilege protects
confidential communications made by a client to an attorney "for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal
proceeding."
21
In the governmental context, an agency is the "client" and its departmental
counsel is the "attorney."
22
The privilege properly applies only to communications created in the
context of an actual attorney-client relationship, and not simply whenever an agency
communicates with another entity composed of lawyers.
23
Indeed, the privilege "must be
'strictly confined within the narrowest possible limits consistent with the logic of its
principle. "'
24
Quite simply, the Office of White House Counsel does not provide legal services to GSA
(or to other federal agencies), but rather provides legal assistance to the President and the White
House staff in their official capacities.
25
GSA has not identified any facts or cited any legal
authority that suggests that an attorney-client relationship exists between the agency and the
Office of White House Counsel. Thus, the agency's reliance, if any, upon the attorney-client
privilege to withhold communications to and from the Office of White House Counsel is clearly
unwarranted.
C. Exemption 6 May Have Been Applied Too Broadly.
As noted above, GSA reportedly invoked Exemption 6 to withhold only "cell phone
numbers, direct dial numbers, and non-GSA e-mail address."
26
Cause of Action does not
challenge the applicability of Exemption 6 to such information. But the agency's reliance upon
Exemption 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 "ultimate
purpose 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 only
when information is the product of an attorney-client relationship and is maintained as confidential between attorney
and 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 that
"White House Counsel's Office provides confidential counsel to the President in his official capacity, to the White
House as an institution, and to senior advisors about legal matters that affect the White House's interests").
26
Final Response, supra note 4.
Mr. Travis Lewis
April2, 2014
Page 5
Salaries, and Resumes" is highly suspect?
7
If this e-mail contains the names of federal
employees and their positions, salaries, or bonuses, that information should be disclosed in
accordance with Office of Personal Management regulations.
28
Encls.
Thank you for your attention to this matter.
Sincerely,
ALLAN BLUTSTEIN
MANAGING COUNSEL
27
E-mail from Dan Cruz, Deputy Press Sec'y, U.S. Gen. Servs. Admin., to Eric Schultz, Deputy Press Sec'y, White
House (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).