Supreme Court nominee Merrick Garland bent over backward to protect White House visitor logs from disclosure, transparency advocates say, leading to their concern about his approach to the law.
The Obama administration has disclosed some White House visitor records as a matter of policy since 2009, but in 2013 the White House won a major appeals decision from Garland that disclosure is not legally necessary under the Freedom of Information Act.
The opinion written by Garland and supported by two colleagues on the U.S. Court of Appeals for the D.C. Circuit opens the door to complete nondisclosure of White House visitor logs by a future administration and critics say it extends an unnecessary cloak of secrecy.
Garland found the president’s constitutional right to confidential communications means FOIA doesn't apply to visitor logs kept by the Secret Service, even though a standard four-factor analysis of whether the logs are “agency records” subject to FOIA was favorable to Judicial Watch, the group seeking them.
A similar carve-out previously existed for congressional records that are shared with agencies, but adoption of the new guidelines for the White House came out of thin air, critics charge.
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