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Judge Rules in White House’s Favor in Missing Email Case
Wednesday, 18 June 2008 20:12
by Jason Leopold

A U.S. District Court Judge ruled Monday that the White House’s Office of Administration does not have to comply with a Freedom of Information Act request related to how officials in the office handled internal discussions about millions of missing White House emails.

The decision by D.C. District Court Judge Colleen Kollar-Kotelly came in response to a Freedom of Information Act lawsuit filed by the government watchdog group Citizens for Responsibility and Ethics in Washington. The Judge’s ruling said the Office of Administration does not “exercise substantial independent authority” and therefore was not an agency subject to FOIA.

“The Court finds that [Office of Administration] has a self-contained structure and that it is not as close to the President operationally as other EOP components that have been found not to be agencies,” the judge’s ruling states. “The Court finds that the nature of OA’s delegation of authority from the President dispositively establishes that it is not an agency subject to the FOIA.”

Anne Weismann, chief counsel of CREW, said the watchdog group has already filed an appeal.

“The concern I have is if we can’t get a ruling before the transition to a new administration happens then all of the Bush administration’s records get shipped to the presidential archives and won’t be available for five to 12 years,” Weismann said in an interview with The Public Record.

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In May 2007, CREW sued the Office of Administration for records regarding missing White House e-mails and the office’s analysis of how widespread the problem was. Initially, the Office of Administration had agreed to turn over some records to CREW, but then abruptly backtracked, concluding that it wasn’t an “agency” subject to the FOIA.

However, the Office of Administration functioned as an agency and processed FOIA requests until August 2007. The White House’s website identified the Office of Administration as an agency and even listed instructions on how to file FOIA requests for Office of Administration documents. The office has responded to FOIA requests since its creation in 1978 by the former President Jimmy Carter.

“The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails,” said Melanie Sloan, the executive director of CREW. “The fact is, until CREW asked for documents pertaining to this problem, the Office of Administration routinely processed FOIA requests. Only because the administration has so much to hide here, has the White House taken the unprecedented position that OA is not subject to the FOIA.”

Kollar-Kottely’s ruling does not impact a separate, but similar, lawsuit CREW and George Washington University’s National Security Archive filed against the Executive Office of the President alleging violations of the Presidential Records Act. That lawsuit seeks to force the administration to document steps the Office of Administration has taken to ensure the preservation of emails in government hard drives after the discovery that as many as 10 million emails were unaccounted for.

In October of 2005, the Office of Administration discovered that White House emails had not been archived in accordance with the Presidential Records Act. The Office of Administration had briefed former White House Counsel Harriet Miers about the lost emails. It’s documents and email correspondence related to these behind-the-scenes discussions that CREW was hoping to obtain with a FOIA request.

Miers is said to have immediately informed Special Prosecutor Patrick Fitzgerald about the issue. Fitzgerald had been investigating White House officials’ role in the leak of covert CIA operative Valerie Plame and subpoenaed White House emails sent in 2003. Fitzgerald stated in a 2006 court filing that some emails in the Office of the President and Vice President had not been turned over to federal investigators working on the leak probe.

An internal investigation by officials in the Office of Administration concluded that e-mails from the office of Vice President Dick Cheney between Sept. 30, 2003, and Oct. 6, 2003 were lost and unrecoverable.

That was the week when the Justice Department launched an investigation into the Plame leak and set a deadline for Bush administration officials to turn over documents and e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson.

Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.

Theresa Payton, the Office of Administration’s chief information officer, admitted in January that the White House “recycled” its computer back-up tapes until October 2003, making it much more difficult to retrieve e-mails. ‘

In a sworn affidavit Payton filed in federal court in March related to CREW’s lawsuit against the Office of the President, she said the White House destroyed its hard drives every three years “in order to run updated software, reduce ongoing maintenance, and enhance security assurance. So its unlikely that any lost emails would be retrieved anyway.

“When workstations are at the end of their lifecycle and retired... under the refresh program, the hard drives are generally sent offsite to another government entity for physical destruction in accordance with Department of Defense guidelines,” states Payton’s sworn affidavit.
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