By Adam Andrzejewski
Vice President Kamala Harris’ office recently rejected our Freedom of Information Act request for her office’s basic payroll information.
However, President Biden’s White House, the federal executive agencies, all 50 states, and at least 80,000 local units of government are legally required to provide this information. Our auditors at OpenTheBooks.com capture and display 25 million salary and pension records annually on our website.
Yet, the Office of the Vice President (VP) was missing from our data, so we filed a request for details – including employee name, position, and salary.
The VP’s rejection makes her the least transparent elected office holder in the country. Citizens ought to be concerned that the person next in line for the presidency is so unwilling to disclose how she spends their money
“The Office of the Vice President is not subject to Freedom of Information Act requests,” a VP official told our OpenTheBooks.com auditors.
That was news to us.
Even FLOTUS disclosed her office staffers and their pay. For example, we know the 12 employees by name, title, and salary that work for Dr. Jill Biden, the First Lady of the United States.
Congress, although not subject to the Freedom of Information Act (FOIA), must post online their staff salaries, by name, and all vendor checkbook spending within their individual offices and committees.
So, next we asked the VP for her high-level payroll summary information, i.e., the number of office employees and their total overall payroll. After all, taxpayers foot that entire bill.
The official directed us instead to 5 U.S.C. § 551, which deals with public information and agency rules. Apparently, VP Harris’ office isn’t going to voluntarily open its books.
In this, the VP is unique among every school, city, county, state, government agency, and even quasi-government entities that are subject to FOIA disclosure of their payrolls.
As far as we know, Vice President Harris— the second-in-command, and possible next president of the United States — is the only elected official in the country who isn’t required to share her payroll details with the public.
So, why is Harris trying to hide her payroll information?
From the President’s Budget to Congress FY2022, we already know she asked for a $1 million budget increase, to $6 million. This includes 27 staffers – an increase of four over former VP Mike Pence’s FY2021 budget.
Background
We reported in July that President Joe Biden’s White House 2021 office payroll is the largest in history, totaling $49.6 million for 567 White House employees.
Over Biden’s four-year term, we project that his White House staff will cost taxpayers at least $200 million.
Currently, there are 190 more employees on White House staff under Biden than under Trump (377) and 80 more than under Obama (487) – at the same point in their respective presidencies.
These numbers, however, don’t include the Office of the Vice President, and we don’t know who makes how much in VP Harris’ office. The Freedom of Information Act (FOIA) gives the public the right to request access to federal agency records or information.
But what’s a federal agency?
The Congressional Research Service (CRS, as recently as August 2020, points to 5 U.S.C. § 551’s definition of “agency.” Agency is defined as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”
That broad definition is further described in the FOIA as one that “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.”
However, CRS notes the law’s scope, “while this definition includes a large swath of the federal government, it does not encompass the entire federal establishment. For example, FOIA does not apply to Congress, the federal courts, or territorial governments.”
While FOIA’s definition of “agency” includes the Executive Office of the President, CRS explains that courts have decided even some entities within that are excluded from the act.
For example, the U.S. Supreme Court’s 1980 decision in Kissinger v. Reporters Committee for Freedom of the Press held that transcripts of Henry Kissinger’s phone conversations during his time as Assistant to the President for National Security Affairs weren’t required to be disclosed under FOIA.
In February 1994, President Clinton’s Assistant Attorney General Walter Dellinger wrote a memorandum as a response to a request from Todd J. Campbell, counsel and director of administration at VP, as to whether his office is an “agency” for the purposes of FOIA.
Dellinger concluded it is not.
He noted that the Supreme Court has held that “agency” doesn’t cover “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”
“The OVP (Office of Vice President) clearly satisfies the Supreme Court’s ‘sole function’ test,” he argued, “because the Vice President and his staff do not have ‘substantial independent authority in the exercise of specific functions,’ but rather have the sole function of advising and assisting the President.”
Critics might say that the memo used faulty legal analysis to pre-determine the conclusion that their own office wanted: to stop FOIA requests for the VP.
While VP records are transferred to the National Archives and Records Administration after an administration leaves office, the VP records aren’t available under FOIA until five years later.
Biden’s own VP records will be subject to public access requests beginning on January 20, 2022, while former Pence’s VP records will become available on January 20, 2026.
If Harris leaves her VP office on January 20, 2025, after one term in office, her office’s records won’t be available until January 20, 2030.
That’s a long time to wait to know what our second-in-command is doing with her office.
Further reading
Biden’s Bloated White House Payroll Is Most Expensive In American History
Freedom Of Information Act Reference Guide
Whether the Office of the Vice President is an “agency” for purposes of the FOIA