Case Detail
| Case Title | DEMOCRACY FORWARD FOUNDATION et al v. WHITE HOUSE OFFICE OF AMERICAN INNOVATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2018cv00349 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2018-02-15 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | Open | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Colleen Kollar-Kotelly | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | DEMOCRACY FORWARD FOUNDATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | FOOD & WATER WATCH, INC. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | The Democracy Forward Foundation and Food & Water Watch submitted FOIA requests to the White House Office of American Innovation for records concerning its operations and calendars for Jared Kushner, head of OAI, and others. The Office of American Innovation did not acknowledge or respond to the requests. Democracy Forward Foundation and Food & Water Watch then filed suit, arguing that the Office of American Innovation was an independent authority created within the White House and was subject to FOIA. Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | WHITE HOUSE OFFICE OF AMERICAN INNOVATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Opinion/Order [17] FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Office of American Innovation, which was set up by President Trump and is run by Jared Kushner, is not subject to FOIA because it has no independent authority and exists for no other reason than to provide advice to the President. While Kollar-Kotelly's decision is not particularly surprising, it is yet another example of congressional intentions gone astray by the development of case law that has consistently moved to defend executive privilege prerogatives at the expense of public access. Rejecting a challenge by the Democracy Forward Foundation and a coalition of other public interest groups, Kollar-Kotelly explained that "while the OAI is given many responsibilities, these responsibilities fall under the sole mission of the OAI which is to 'make recommendations to the President on policies and plans that improve government operations and services, improve the quality of life for Americans now and in the future, and spur job creation.' If all of OAI's responsibilities are cabined within its overarching mission to make recommendations to the President, it is unclear how the OAI could 'wield substantial authority independent of the President.'" But to the extent that all executive authority is delegated through the President, it becomes somewhat unwieldy to determine where that delegation of authority ends. When Congress decided that FOIA applied to executive branch agencies it set in motion an underlying separation of powers dispute that in part has been resolved by the judicial conceit that at some point an executive entity became so integral to the President's day-to-day operations that to make it subject to FOIA would impinge on the President's ability to get candid advice from his immediate staff. The idea that separation of power issues were inherent in the disclosure mandate of FOIA was a reality that was not met head on and to the extent that it surfaced was left to the courts to sort out. The first instance in which this tension came to a head was in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), in which the D.C. Circuit found that the Office of Science and Technology's role in evaluating federal science programs indicated that it had an independent authority beyond solely advising the President and was therefore subject to FOIA. When Congress amended FOIA for the first time in 1974, the Conference Report embraced Soucie's holding, indicating that the term "Executive Office of the President" should be interpreted consistent with "the results reached" in Soucie. The sole function test from Soucie underwent significant judicial gloss in Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) involving the Presidential Task Force on Regulatory Relief, which had been created during the Reagan administration and led by Vice President George Bush and continued into the Bush administration where it was led by Vice President Dan Quayle. In Meyer, the majority explained that whether an EOP entity was subject to FOIA depended on (1) its operational proximity to the President; (2) the degree of delegation of substantially independent authority from the President; and (3) whether it had a separate staff and self-contained structure. This kind of rethinking of the sole function standard from Soucie also resulted in the D.C. Circuit, in Armstrong v. Executive Office of the President, 90 F.3d 556 (D.C. Cir. 1996), to conclude that the National Security Council, which had previously considered itself to have a sufficient degree of independent authority to be subject to FOIA, in reality had no authority that was not delegated by the President. In CREW v. Office of Administration, 559 F. Supp. 2d 9 (D.D.C. 2008), Kollar-Kotelly herself relied on Meyer in rejecting CREW's claim that the Office of Administration, which provides administrative services to components of EOP, was an agency subject to FOIA. There, she pointed out that "when the nature of OA's delegated authority is considered along with that fact that OA is, at least as a matter of formal organization, proximate to the President, the Court is compelled to conclude that OA is not an agency subject to FOIA under the test set forth in Meyer." Kollar-Kotelly's decision was upheld by the D.C. Circuit in CREW v. Office of Administration, 566 F.3d 219 (D.C. Cir. 2009). Kollar-Kotelly agreed with the government that the fact that OAI was an entity within the White House Office was fatal to DFF's claim of agency status. She pointed out that "the D.C. Circuit has repeatedly interpreted Kissinger v. Reporters Committee to mean that entities within the White House Office are categorically not agencies for purposes of FOIA. And, Plaintiffs have failed to cite any case in which an entity within the White House Office has been held to be an agency under FOIA. Based on FOIA's 'agency' definition and this Circuit's precedent, the Court concludes that, because the OAI is an entity within the White House Office, the OAI is not an agency subject to disclosure requirements under FOIA." DFF argued that OAI's responsibilities indicated that it had independent authority, pointing to such responsibilities as evaluating and directing the modernization of federal technology systems, developing a federal infrastructure plan, managing "Centers for Excellence," and negotiating deals between public and private partners. DFF also pointed to the report by the American Technology Council, which OAI alleged helped prepare. But Kollar-Kotelly observed that "the Report's preface indicates that the Report is meant to provide recommendations. And, many of those recommendations specifically request that 'the President direct the implementation of the plan outlined' by the Report. Merely providing policy recommendations for the President to direct does not establish the substantial independence of the OAI." DFF pointed to OAI's participation in developing the Trump administration's infrastructure plan as further evidence of its independent authority. But Kollar-Kotelly noted that "even if the Court credits Plaintiffs' allegations that the 'OAI aided in the development' of the federal infrastructure plan, participation in that task does not establish substantial independence from the President. After all, according to the plan itself, the White House, not the OAI released the plan. Again, participating in developing and drafting legislation and policy released by the White House does not establish independence from the President. If anything, assisting the White House in developing policies such as the federal infrastructure plan strengthens the argument that OAI's primary function is to assist and advise the President."
Issues: Agency - Independent authority | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| User-contributed Documents | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 Docket Events (Hide) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
