Whether the Office of Administration Is an "Agency" for Purposes of the Freedom of Information Act

Whether the Office of Administration Is an “Agency”

for Purposes of the Freedom of Information Act

The Office of Administration, which provides administrative support to entities within the Executive

Office of the President, is not an agency for purposes of the Freedom of Information Act.

August 21, 2007

MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

Your Office has asked whether the Office of Administration (“OA”), which

provides administrative support to entities within the Executive Office of the

President (“EOP”), is an “agency” for purposes of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2000). For the reasons discussed below, we conclude

that it is not.

I.

The Office of Administration is entirely a presidential creation, and its duties

are confined to the EOP. It was created as an entity within the EOP by Reorgani-

zation Plan No. 1 of 1977, § 2, 5 U.S.C. app. 1 (2000) (“Reorganization Plan”),

which provided that OA “shall be headed by the President” and “shall provide

components of the Executive Office of the President with such administrative

services as the President shall from time to time direct.” Further presidential

direction regarding OA’s responsibilities is set forth in Executive Order 12028,

3 C.F.R. 161 (1977 Comp.) (as amended by Exec. Order No. 12122, 3 C.F.R. 365

(1979 Comp.); Exec. Order No. 12134, 3 C.F.R. 385 (1979 Comp.)). Section 3(a)

of Executive Order 12028 states that OA “shall provide common administrative

support and services to all units within the Executive Office of the President,

except for such services provided primarily in direct support of the President.” For

those services provided “primarily in direct support of the President,” OA “shall,

upon request, assist the White House Office in performing its role of providing

those administrative services.” Id. § 3(a). Section 3(b) provides that OA’s

administrative support and services “shall encompass all types of administrative

support and services that may be used by, or useful to, units within the Executive

Office of the President,” including, but not limited to, “personnel management

services”; “financial management services”; “data processing”; “library, records,

and information services”; and “office services and operations, including[] mail,

messenger, . . . graphics, word processing, procurement, and supply services.” Id.

§ 3(b) (as amended by Exec. Order No. 12134 (transferring responsibility for

printing and duplication services to the Department of the Navy)).

The President heads OA and appoints its Director, who, as the chief administra-

tive officer of OA, is “responsible for ensuring that [OA] provides units within the

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[EOP] common administrative support and services.” Id. § 2. Subject to the Presi-

dent’s “direction or approval,” the Director “organize[s] [OA], contract[s] for

supplies and services, and do[es] all other things that the President, as head of

[OA], might do.” Id. § 4(a) (as amended by Exec. Order No. 12122). On a day-to-

day basis, the Director reports to the Assistant to the President and Deputy Chief

of Staff, through the Deputy Assistant to the President for Management, Admin-

istration, and Oval Office Operations. In addition, the Director provides advice to

the President, through the Deputy Chief of Staff, on matters such as budget and

appropriations issues, cyber security and threats, and administrative questions.

II.

The Freedom of Information Act requires that “[e]ach agency” make available to

the public various agency records. 5 U.S.C. § 552. As revised in 1974, the statutory

definition of the term “agency” includes “any executive department, military

department, Government corporation, Government controlled corporation, or other

establishment in the executive branch of the Government (including the Executive

Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1)

(emphasis added). In Kissinger v. Reporters Committee for Freedom of the Press,

445 U.S. 136 (1980), the Supreme Court relied on the legislative history of this

definition to hold that “‘the President’s immediate personal staff or units in the

Executive Office whose sole function is to advise and assist the President’ are not

included within the term ‘agency’ under the FOIA.” Id. at 156 (quoting H.R. Conf.

Rep. No. 93-1380, at 15 (1974)). The Court of Appeals for the D.C. Circuit has

recognized that, in revising the definition of the term “agency” in 1974, Congress

drew on and codified that court’s finding in Soucie v. David, 448 F.2d 1067, 1073

(D.C. Cir. 1971), that an “agency” included “any administrative unit with substan-

tial independent authority in the exercise of specific functions,” including such a

unit in the EOP. See Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993) (“As

clearly shown by the legislative history, . . . Congress intended to codify our

earlier decision . . . in Soucie v. David.”).

In a series of cases addressing whether an EOP entity is an “agency” for FOIA

purposes, the D.C. Circuit has focused on whether the entity possessed “substan-

tial independent authority,” and in seeking to resolve that question, has articulated

a three-factor test, which was first set out in Meyer. See id. at 1293. The test

requires consideration of “(1) ‘how close operationally the group is to the Presi-

dent,’ (2) ‘whether it has a self-contained structure,’ and (3) ‘the nature of its

delegat[ed] authority.’” Armstrong v. Exec. Office of the President, 90 F.3d 553,

558 (D.C. Cir. 1996) (quoting Meyer, 981 F.2d at 1293). Each factor is not

“weighed equally”; instead, each “warrants consideration insofar as it is illuminat-

ing in a particular case.” Id. In practice, the D.C. Circuit has placed considerable

emphasis on the third factor, closely considering the “nature of its delegated

authority” to determine the ultimate question whether the entity exercises “sub-

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stantial independent authority” or instead functions solely to advise and assist the

President. Id.

As explained below, this third factor is dispositive here. Although OA has an

organizational structure that would allow it to exercise independent authority

should the President so delegate, and although it is not proximate to the President

in the same way as the President’s personal staff, we believe that the nature of the

delegated authority that OA actually exercises is such that OA cannot be said to

exercise substantial independent authority in its limited mission of providing

administrative assistance solely within the EOP, which itself supports the Presi-

dent. We therefore conclude that OA is not an agency for purposes of FOIA. 1

A.

The logical initial inquiry, under both the statutory language and the D.C.

Circuit case law, concerns organizational structure, the second of the three factors

set out in Meyer. As the D.C. Circuit has explained, it “seems very doubtful” that

“an entity without a self-contained structure could ever qualify as an agency that

exercises substantial independent authority.” Armstrong, 90 F.3d at 559; see also

Meyer, 981 F.2d at 1296 (“FOIA, by declaring that only ‘establishments in the

executive branch’ are covered, 5 U.S.C. § 552(e), requires a definite structure for

agency status.”). In Armstrong, the court concluded that the National Security

Council (“NSC”) had the self-contained structure necessary for a FOIA “agency”:

The NSC staff is not an amorphous assembly from which ad hoc task

groups are convened periodically by the President. On the contrary,

it is a professional corps of more than 150 employees, organized into

a complex system of committees and working groups reporting ulti-

mately to the Executive Secretary. There are separate offices, each

responsible for a particular geographic region or functional area,

with clearly established lines of authority both among and within the

offices.

1

In a prior opinion concluding that White House data entered and stored on OA computers under

specified conditions did not qualify as “agency records” under FOIA, we stated that OA, “as a unit

within EOP which does not have the sole function of advising and assisting the President, may well be

an ‘agency’ within the meaning of FOIA.” Memorandum for Fred F. Fielding, Counsel to the President,

from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Applicability

of Freedom of Information Act to White House Records Entered and Stored in Office of Administration

Computers at 4 (Feb. 22, 1982). The opinion did not provide any analysis supporting that statement and

predated subsequent court decisions, such as Meyer, 981 F.2d 1288; Sweetland v. Walters, 60 F.3d 852

(D.C. Cir. 1995); and Armstrong, 90 F.3d 553. Now that the question is squarely presented and we have

occasion to analyze it fully, and in light of the subsequent case law discussed herein, we reject any

suggestion that OA is an agency for the purposes of FOIA.

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90 F.3d at 560. By contrast, Meyer held that the President’s Task Force on

Regulatory Relief, an ad hoc task force created by President Reagan, was not an

agency because it operated out of the Vice President’s office and, importantly,

lacked a separate staff. See Meyer, 981 F.2d at 1296 (“[T]he Task Force’s lack of a

separate staff is a strong indicator that it was neither an ‘establishment’ nor an

independent actor in the executive branch.”).

Like the NSC, OA has a defined hierarchy. The President stands at its head, and

a director—who is personally appointed by, and serves at the pleasure of, the

President—provides for the Office’s day-to-day management. In its Fiscal Year

2008 Congressional Budget Submission, OA reported that it maintains a staff

consisting of approximately 225 employees, and it is organized into five different

offices, each with its own defined functions, that report to the Director. See

Executive Office of the President, Office of Administration, Congressional Budget

Submission, FY 2008, at OA-3. A court would likely find this to be the kind of

“self-contained structure” necessary to characterize OA as an agency for FOIA

purposes. 2

As the D.C. Circuit has explained, however, “while a definite structure may be

a prerequisite to qualify as an establishment within the executive branch . . . not

every establishment is an agency under the FOIA.” Armstrong, 90 F.3d at 558

(internal quotations and citations omitted). Even when an office “has a structure

sufficiently self-contained that the entity could exercise substantial independent

authority . . . [t]he remaining question is whether the [entity] does in fact exercise

such authority.” Id. at 560. Indeed, the reason for considering an entity’s organiza-

tional structure is to determine whether the entity is even in a position to exercise

independently any authority delegated by the President.

B.

We consider next OA’s “proximity” to the President. The D.C. Circuit has

explained that “[t]he closer an entity is to the President, the more it is like the

White House staff, which solely advises and assists the President, and the less it is

like an agency to which substantial independent authority has been delegated.”

Armstrong, 90 F.3d at 558; see also Meyer, 981 F.2d at 1293 (“Proximity to the

2

We note that OA is currently governed by regulations suggesting that OA may have considered

itself to be an agency for purposes of FOIA. See 5 C.F.R. §§ 2502.1–2502.10 (2007). That fact,

however, is not significant to our analysis. As the D.C. Circuit explained in Armstrong, “[t]he NSC’s

prior references to itself as an agency are not probative on the question before the court—whether the

NSC is indeed an agency within the meaning of the FOIA; quite simply the Government’s position on

that question has changed over the years.” 90 F.3d at 566. The court was referring in part to a 1993

opinion of this Office that applied subsequent legal developments to reverse the prior position of the

Office that the NSC was an agency subject to FOIA. See Memorandum for Alan Kreczko, Special

Assistant to the President and Legal Adviser, NSC, from Walter Dellinger, Acting Assistant Attorney

General, Office of Legal Counsel, Re: Status of NSC as an “Agency” under FOIA (Sept. 20, 1993).

The court in Armstrong agreed with the legal conclusion of our 1993 opinion regarding the NSC.

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President, in the sense of continuing interaction, is surely in part what Congress

had in mind when it exempted the President’s ‘immediate personal staff’ [from the

requirements of FOIA] without requiring a careful examination of its function.”)

(quoting conference committee report relied on in Kissinger). Thus, the Armstrong

court, in holding that the NSC is not an “agency” for purposes of FOIA, explained

that the NSC shares an “intimate organizational and operational relationship” with

the President. Armstrong, 90 F.3d at 560. The NSC is chaired by the President, and

its staff is supervised by the Assistant to the President for National Security

Affairs (“National Security Adviser”), who “work[s] in close contact with and

under the direct supervision of the President.” Id. Because of this close relation-

ship, the court stated that it would require a “strong showing” on the remaining

factor of the three-part Meyer test—the nature of the NSC’s delegated authority—

in order for the court to conclude that the NSC is an “agency” under FOIA. Id.

To some extent, OA may be deemed proximate to the President. Like the NSC,

OA is headed by the President, Reorganization Plan § 2, and the OA Director, who

supervises the day-to-day functions of OA, is appointed by the President, id., and

is subject to “direction or approval as the President may provide or require,” Exec.

Order No. 12028, § 4(a) (as amended by Exec. Order No. 12122). The OA

Director does not regularly report directly to the President, but he does report to

senior White House staff, and he provides advice to the President, through the

Deputy Chief of Staff, on matters such as budget and appropriations issues, cyber

security and threats, and administrative questions. See supra p. 201.

On the other hand, OA does not share the kind of “intimate organizational and

operating relationship” with the President that the NSC does. Armstrong, 90 F.3d

at 560. For example, in Armstrong the President was described as “working in

close contact with” and “direct[ly] supervis[ing]” the National Security Adviser,

who controls the NSC staff. Id. Here, by contrast, the President rarely if ever

works “in close contact with” or “direct[ly] supervis[es]” the OA Director. In this

sense, therefore, OA is not as “proximate” to the President as his “immediate

personal staff,” Kissinger, 445 U.S. at 156, who interacts with him on a regular

basis.

Like the analysis of whether an EOP entity has a self-contained structure, how-

ever, the analysis of an EOP entity’s proximity to the President does not ultimately

determine whether it is an agency for purposes of FOIA. Although an entity’s

proximity to the President may suggest a lack of substantial independent authority,

see Armstrong, 90 F.3d at 560 (NSC’s close proximity to the President required

plaintiff to make a “strong showing . . . regarding the remaining factor under

Meyer”), it does not follow that a more distant relationship itself establishes

independent authority, much less substantial independent authority. Rather, such a

determination requires an examination of the authority actually exercised by the

entity.

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C.

Thus, our analysis ultimately turns on the nature of OA’s delegated authority.

As explained below, we believe that because OA only provides administrative

support to the EOP, it does not exercise “substantial independent authority.”

In a very similar case, the D.C. Circuit found a lack of substantial independent

authority where the entity performed administrative functions for the President. In

Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995), the court determined that the

Executive Residence of the President, which “provides for the operation of the

Executive Residence” by, among other things, conducting “general housekeeping,

prepar[ing] and serv[ing] meals, greet[ing] visitors, and provid[ing] services as

required in support of official and ceremonial functions,” id. at 854, does not wield

substantial independent authority. 3 The court explained that “the Residence staff’s

functions demonstrate[] that it is exclusively dedicated to assisting the President in

maintaining his home and carrying out his various ceremonial duties,” and that the

staff “does not oversee and coordinate federal programs . . . or promulgate binding

regulations.” Id. Accordingly, the court concluded, the staff of the Executive

Residence does not have “delegated independent authority” and is therefore “not

an agency as defined in FOIA.” Id. at 854-55. 4

We think that OA’s authority is closely analogous to the authority of the Execu-

tive Residence at issue in Sweetland. By executive order, OA exercises the

authority to “provide components of the Executive Office of the President with

such administrative services as the President shall from time to time direct.”

Reorganization Plan § 2. The President likewise has delegated to the OA Director,

as the chief administrative officer, the authority to “organize [OA], contract for

supplies and services, and do all other things that the President, as head of [OA],

might do.” Exec. Order No. 12028, § 4(a) (as amended by Exec. Order No.

12122). OA’s mission is “to provide administrative services to all entities of the

[EOP], including direct support services to the President.” Office of Administra-

tion, http://www.whitehouse.gov/oa (last visited ca. 2007). Such services include

“financial management and information technology support, human resources

management, library and research assistance, facilities management, procurement,

printing and graphics support, security, and mail and messenger operations.” Id.

3

The D.C. Circuit held in 1995 that the Executive Residence was not a unit within the EOP, but

was “analogous to an EOP unit for purposes of a FOIA analysis.” Sweetland, 60 F.3d at 854. The

White House subsequently incorporated the Executive Residence into the EOP in 2002. See Memoran-

dum for Gary Walters, Chief Usher, Executive Residence, from Andrew H. Card, Jr., White House

Chief of Staff (June 11, 2002).

4

The court also noted that the responsibilities of the Executive Residence, as is the case with OA,

are carried out “under the direction of the President” or “with the approval of the President.” 60 F.3d at

855 (citation omitted); see also Armstrong, 90 F.3d at 563 (plaintiff “has not . . . established that any of

[the NSC’s] authority can be exercised without the consent of the President”).

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OA is therefore very much like the Executive Residence in that its role is to

provide services in support of the President by assisting the staff of the EOP. OA’s

mission is to provide the necessary administrative support for the staff of the EOP

“so that policy-making staff elsewhere in the EOP can focus on national policy

decisions without having the distractions caused by routine administrative

services.” See Executive Office of the President, Office of Administration,

Congressional Budget Submission, FY 2006, at 69. Like the Executive Residence,

OA does not have any authority to make policy or supervise other units of the

Executive Branch. Rather, the heads of other EOP offices remain responsible for

policymaking functions where those functions may overlap with OA’s responsibil-

ities. Exec. Order No. 12028, § 4(d) (as amended by Exec. Order No. 12122)

(“The Director shall not be accountable for the program and management respon-

sibilities of units within the [EOP]; the head of each unit shall remain responsible

for those functions.”). Accordingly, because the “ultimate authority to set objec-

tives, determine policy, and establish programs rests elsewhere,” and OA’s sole

function is to provide administrative support, OA does not exercise the substantial

independent authority required for a FOIA agency. Armstrong, 90 F.3d at 564.

Indeed, OA’s non-substantive, administrative support authority stands in stark

contrast with the kind of authority exercised by the EOP units determined by the

D.C. Circuit to be agencies under FOIA: the Office of Science and Technology

had authority, transferred to it from the National Science Foundation, “to evaluate

the scientific research programs of the various federal agencies,” Soucie, 448 F.2d

at 1073; the Council on Environmental Quality had regulatory authority over

federal agencies, see Pac. Legal Found. v. Council on Envt’l Quality, 636 F.2d

1259, 1262 (D.C. Cir. 1980); and the Office of Management and Budget had a

statutory duty to prepare the budget submitted to Congress by the President, Sierra

Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978), rev’d on other grounds, 442

U.S. 347 (1979). The D.C. Circuit has never held that an administrative office like

OA exercises the “substantial independent authority” of a FOIA agency. 5

5

As the discussion in this memorandum has indicated, when the D.C. Circuit analyzes whether an

EOP unit is an agency under FOIA, it focuses on whether the entity exercises “substantial independent

authority” and not on whether the “sole function” of the entity is to “advise and assist” the President.

See, e.g., Armstrong, 90 F.3d at 558–66; Sweetland, 60 F.3d at 853–55. The implication of the D.C.

Circuit decisions is that as long as a unit of the EOP exercises no substantial independent authority, it

should be classified as a unit that functions to advise and assist the President for purposes of being

exempt from FOIA, without requiring a separate showing as to how the unit provides both advice and

assistance to the President. The opinion in Sweetland, for example, contains no discussion of whether

the staff of the Executive Residence functions to “advise” the President, strongly suggesting that as

long as a unit of the EOP exercises no substantial authority independently of the President, it is not

subject to FOIA. Therefore, although OA does in fact advise the President, see supra p. 188, it is not

necessary that OA “advise” as well as “assist” the President in order for OA to be classified as a “unit[]

in the Executive Office whose sole function is to advise and assist the President.” Kissinger, 445 U.S.

at 156 (internal quotations and citations omitted).

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Finally, we emphasize that OA differs from the EOP entities that have been

held to be agencies for purposes of FOIA in the additional respect that its respon-

sibilities derive entirely from executive orders of the President; OA does not trace

its authority back to a federal statute. An office within the EOP will be more likely

to act independently of the President when, like an agency outside the EOP, the

office is charged with specific duties by statute, rather than by an immediate

delegation from the President. See Armstrong, 90 F.3d at 565. Thus, the D.C.

Circuit relied on the Office of Science and Technology’s statutory authority to

evaluate federal scientific programs, see Soucie, 448 F.2d at 1075, and the Office

of Management and Budget’s statutory responsibility over the budget, see Andrus,

581 F.2d at 902, in holding that both offices are FOIA agencies. By contrast,

Congress neither created OA nor charged it with any statutory responsibility.

Rather, OA’s authority derives solely from an executive order, the Reorganization

Plan, which places the office under the direct supervision of the President. The

President serves as the head of OA, and the Director remains “[s]ubject to such

direction or approval as the President may provide or require.” Exec. Order No.

12028, § 4(a) (as amended by Exec. Order No. 12122).

III.

For the foregoing reasons, we conclude that the authority delegated by the

President to OA to provide administrative support does not constitute “substantial

independent authority.” We therefore conclude that OA is not an “agency” for

purposes of FOIA.

STEVEN A. ENGEL

Deputy Assistant Attorney General

Office of Legal Counsel

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