Court orders GSA to turn over more Trump Hotel FOIA documents

In the tangled web of lawsuits surrounding the Trump Hotel in Washington, D.C., one thing has been made clear — government watchdog groups are entitled to more documents about the deal than the General Services Administration has provided.

Judge Beryl Howell, the chief of the U.S. District Court for the District of Columbia, ruled that GSA wrongfully withheld documents for a Freedom of Information Act request looking for records of communications about the Trump Hotel.

While GSA provided American Oversight with thousands of documents related to its FOIA request, the agency didn’t provide “attachments … to other responsive documents” because the FOIA request didn’t specifically request attachments.

Howell countered that “GSA is just wrong” for not including those attachments.

“While the FOIA request does not explicitly refer to attachments, the scope of the request
for ‘all records reflecting communications’ plainly covered parts of email communications that
were in the form of an attachment,” Howell wrote in her May 3 opinion. “GSA’s blinkered literalism, distinguishing emails from email attachments, is at odds with the agency’s ‘duty to construe a FOIA request liberally.'”

GSA turned up more than 61,000 documents in its initial search for records, which prompted American Oversight to narrow the scope of its request to nine search terms.

However, GSA only searched for seven of the nine search terms that the nonprofit requested. The agency combined the queries for “post office” and “hotel” into “post office hotel,” and did not search for “Ivanka” at all, referring to Ivanka Trump, a major official in the Trump Organization.

All told, GSA turned over nearly 4,000 pages of documents to American Oversight. But it didn’t search for any call logs, meeting agendas or paper records related to the nonprofit’s request, on the grounds that searching for those records “goes far beyond what is required by the FOIA.”

Court documents indicate that nearly 2,000 pages of the documents contained redactions. GSA cited attorney-client privilege for those redactions.

The judge also found GSA improperly redacted the names of Trump transition team officials, citing privacy concerns, even though their names and roles on the transition team were listed on a transition team website.

The judge ordered GSA to turn over previously undisclosed email attachments to the nonprofit within 45 days of the ruling, as well as a joint status report from both parties.

Austin Evers, the executive director of American Oversight, said the public deserves to know whether President Donald Trump’s lease with GSA violates federal ethics laws.

“The administration fought to deny the public as much as possible, withholding email attachments, making bogus claims of attorney-client privilege, and failing to even search for calendar entries or phone records. That doesn’t fly. We’ll see the truth soon,” Evers said in a statement.

GSA’s inspector general is reviewing the 60-year, $180 million lease between the agency and the Trump Organization.

Meanwhile, the District of Columbia and Maryland have a pending lawsuit in federal court that claims Trump benefiting from the business of the Trump Hotel violates the Constitution’s Emoluments Clause.

What is the state of FOIA?

In March, the Justice Department’s Office of Information Policy updated FOIA.gov to make the site a one-stop shop to file a request online.

However, the Freedom of Information Act, which turned 50-years-old last year, has yet to fully meet all the demands of the digital age.

The Associated Press reported that out of the more than 800,000 FOIA requests filed in 2017, 78 percent of the responses contained censored documents or were answered with nothing.

In cases where the government provided no records, FOIA officials said they could not find information related to the request more than half the time.

“By their own statistics, they’re withholding more information, asserting more exemptions, applying more black Magic Markers to documents than ever before,” Thomas Blanton, director of the National Security Archive at George Washington University, said in an interview.

And yet, Blanton added that the National Security Archive, which files more than 1,000 FOIA requests every year, continues to get a “constant flow of incoming information.”

“The paradox, I guess, is that the barriers and the obstacles are what make news, but the law at its most fundamental way it works, is to make a ton of information routinely available to all of us. So best of times and worst of times,” Blanton said.

More than 400 FOIA offices are located across 116 agencies, and they’re receiving a growing number of information requests. The federal government has seen an increase in FOIA requests of nearly 50 percent since 2010.

While some large agencies, like the State Department, take longer to process requests, Blanton said it maintains one of the best FOIA websites.

“Stuff they’ve previously released, you can actually find online. So you might not get an answer to your FOIA for a year, or two, or three, but you can do quick searches and see if they ever released anything. So you get these, even within a single agency, very different levels of engagement with the public,” Blanton said.

In March, the National Security Archive found that about one-third of the 100 FOIA offices it had sent identical records requests to did not acknowledge the nearly year-old request.

“There were only about a dozen agencies that could do that search right off the bat —  could do it pretty easily and come back with a non-response or a couple of documents,” Blanton said.

Many of the other requests to agencies resulted in months of back-and-forth emails and phone calls. Ultimately, Blanton said the agency’s IT staff stepped in and performed the email searches.

“This disconnect within the agency, between the IT folks and the Freedom of Information Act folks or the records managers, is a real barrier,” he said.

While FOIA offices, facing cases backlogs, may feel overwhelmed in some cases, Blanton said GSA’s FOIA office was in the wrong to think email attachments weren’t fair game for American Oversight’s FOIA request.

“Trying to withhold attachment from email, it just doesn’t make sense. Think about how you and I  use email. You send along documents that you’re working on, or you send along examples or news stories that you’ve seen. The attachments are the substance, in many ways,” Blanton said.

A GSA spokeswoman told Federal News Radio that the agency doesn’t comment on pending litigation.

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