By HART W. WOOD
American Oversight’s investigation into the president’s influence over a multibillion-dollar government project has been met with delaying tactics, inadequate searches, and unjustified document withholding. But two recent federal court decisions have ruled that federal agencies cannot continue to stonewall and avoid transparency.
The decisions are the first in a series of lawsuits that American Oversight filed against the Office of Management and Budget (OMB), the Federal Bureau of Investigation, the Department of Justice, and the General Services Administration (GSA) to force transparency regarding the FBI headquarters consolidation — a longstanding relocation project that suddenly reversed course after reported interference by President Donald Trump, whose namesake hotel sits just a few blocks away.
The story of the consolidation project — and of those lawsuits — goes back more than a decade. In 2005, the FBI first stated its need to move its headquarters from the J. Edgar Hoover (JEH) building in downtown Washington, DC, which was then already inadequate in terms of space and security. The Government Accountability Office affirmed in 2011 the need to relocate the headquarters to a location that provides true security in accordance with federal standards. A massive, interagency effort was undertaken over the next six years to make that relocation happen.
But the plan abruptly changed under President Trump. The long-sought relocation was suddenly scuttled early in his administration, in favor of the costlier option of building a new headquarters in the same place as the JEH building. Interestingly, news reports indicated that high-level Trump administration officials, including the president himself, may have played roles in the about-face. Documents released in October 2018 by the House Committee on Oversight and Government Reform further revealed the unusual involvement of Trump in the procurement process, with emails referring to the decision as “direction from the White House,” “what POTUS directed everyone to do,” and “the project the president wants.”
Why the change of plans? Was it because the FBI valued the location so much, or because Trump did not want the JEH property — which sits only two blocks from the Trump International Hotel — to be redeveloped into competing commercial property? American Oversight filed a series of Freedom of Information Act requests to OMB, the FBI, the Justice Department and the GSA to find out, looking for any communications between high-level agency officials and representatives of the Trump Organization, as well as communications involving top-level officials that contained specific key terms (for example, “Trump International Hotel”). Other requests sought records from various White House meetings regarding the project, as reported by the GSA’s Office of the Inspector General. After none of the agencies responded within the time mandated by law, American Oversight took them to court in five separate lawsuits.
In one of the lawsuits, this one against all four agencies for meeting records, the administration’s searches and responses were consistently inadequate or problematic. The GSA restricted its search for records containing the key terms we listed by tying its search to email addresses, without explaining how (or if) it conducted searches of paper records. The FBI also failed to justify why it decided not to search the paper records or notes of Director Christopher Wray, who had been present at the White House meetings. Similarly, the Justice Department neglected to search the records of officials whom American Oversight identified as likely to have documents responsive to its request, and both the FBI and OMB excluded obvious synonyms for the headquarters building, including “JEH” and “Hoover building.”
On Monday, Judge Colleen Kollar-Kotelly of the U.S. District Court for DC ruled that all four agencies’ searches were inadequate and unreasonably narrow, and that many of the search decisions were not properly justified. For instance, OMB’s argument that some of American Oversight’s requested search terms would result in a number of “unresponsive” records was unsatisfactory. “[T]he speculation that the search terms may result in some unresponsive results,” Kollar-Kotelly wrote in her opinion, “is not a sufficient reason to exclude the search terms.”
Three weeks earlier, Judge Dabney L. Friedrich had reached similar conclusions in our lawsuit against OMB for records of related communications, ruling that OMB’s search was inadequate in all respects, and that most of the documents the office had withheld were not justified. From the beginning of litigation, OMB decided that it would ignore the actual language of American Oversight’s requests and instead substitute its own language. OMB tossed out American Oversight’s clear requests, such as for any communications between specific officials and Trump Organization representatives, and declared, over our objections, that OMB would be the arbiter of which communications were “relevant.” OMB also rejected the list of terms set out in the request — terms that defined which documents were responsive — and instead searched for much narrower and more complex terms of its own making. Finally, while OMB’s defective search did locate a small number of documents, the office withheld most of those under the presidential communications privilege, which is meant to exempt from FOIA documents that reflect presidential decision-making.
In Friedrich’s words, “OMB’s justification of its search terms — and, in particular, its justifications for refusing to use the terms suggested by American Oversight — [were] insufficient.” It was not appropriate, for example, for OMB to refuse to search for the terms we listed simply because those terms may have been used in other contexts and therefore return false positives. It is OMB’s responsibility to search for the records requested and to “read the request as drafted, not as agency officials might wish it was drafted.”
Furthermore, Friedrich ruled that it was unlawful for OMB to impose its own subject-matter limitation onto American Oversight’s request where none existed. OMB took the unreasonable position that it could rely on the introductory paragraphs of the FOIA request — paragraphs that provide some context for the facts surrounding the request but are not applicable to the request itself. But Friedrich found that it was required to read the plain terms of the request as drafted. In fact, as Friedrich outlined, each part of our request was “more straightforward than the searches that OMB ultimately conducted.” Instead of conducting the searches as laid out by American Oversight, OMB improperly “searched for a complex arrangement of terms” that were not adequately tailored to find the requested records.
Finally, Friedrich also found that OMB had arbitrarily withheld most of the documents it had located under the presidential communications privilege. Even if OMB could allege that the documents pertained to agency communications with the president or his advisers, the court ruled, OMB had not provided anything to show they actually reflected matters of presidential decision-making.
While both the March 31 and the April 20 rulings were big wins for transparency, they are just the next steps in American Oversight’s fight to uncover the facts behind Trump’s influence over a multibillion-dollar government project that could affect his personal commercial interests. Although the Trump administration has tried its best to stall the production of relevant documents, the recent rulings shows that federal judges won’t put up with the stonewalling for long. One way or another, agencies will have to come up with the records we requested, and it may become clear why the government tried so hard to keep them from coming out to begin with.