TPR: The Public Record "In-Depth, Investigative, Independent"

A U.S. District Court judge ruled Monday that the National Security Archive can move to force the White House to recover millions of Bush administration e-mails lost or destroyed between 2003 and 2005. 

Judge Henry H. Kennedy, a Clinton appointee, rejected the Bush administration's claim that federal courts lacked the authority to require the White House to recover the e-mails. Kennedy ruled that the Federal Records Act permits a private plaintiff to file a complaint requiring the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records. 

"This ruling gives the public a clear voice in demanding preservation of our nation's history, even when that history is created at the White House," explained Sheila Shadmand, an attorney at Jones Day who is representing the Archive. "We can now give positive action to that voice and protect these records before they get carted off or destroyed as the current administration packs its bags to leave. In that sense, the ruling itself is as historical as the records it will protect."     

Meredith Fuchs, general counsel for the Archive, said Monday's court ruling represents "a major victory for the public interest in accountability at the White House."

"Through this lawsuit we have preserved over 65,000 computer backup tapes," Fuchs said. "This decision means those tapes will survive the end of the Bush Administration so that Congress, the courts, and eventually the public will be able to learn about the decision-making that took place over the last 8 years."

George Washington University's National Security Archive sued the Executive Office of the President and the National Archives and Records Administration in September 2007 alleging more than five million White House e-mails were deleted from White House computers between March 2003 and October 2005.

The government watchdog group Citizens for Responsibility and Ethics in Washington also sued to recover the missing e-mails. CREW's complaint was consolidated with the Archive's lawsuit. A chronology of the litigation is available here.

The email controversy first surfaced in January 2006. At the time, Patrick Fitzgerald, the special prosecutor appointed to investigate the leak of covert CIA operative Valerie Plame Wilson, said in a court filing  that he "learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

In October of 2005, the Office of Administration discovered that White House e-mails 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 e-mails.

Miers is said to have immediately informed Fitzgerald about the issue. Fitzgerald had been investigating White House officials' role in the Plame leak and subpoenaed White House e-mails sent in 2003.

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. The timeframe also coincided with litigation surrounding the release of documentsr related to Cheney's National Energy Task Force meetings. 

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.

White House Chief Information Officer Teresa Payton and press secretary Dana Perino have blamed the loss of the e-mails on the administration's transition from Lotus Notes to Microsoft Outlook.

Earlier this year, Payton filed an affidavit with U.S. Magistrate John Facciaola stating that every three years the White House destroyed its hard drives "in order to run updated software, reduce ongoing maintenance, and enhance security assurance."

"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.

In March, Payton also revealed that until October 2003 the White House had "recycled" its computer back-up tapes, which made it much more difficult to retrieve e-mails.

In August, CREW revealed in a court filing that the Bush administration may have hired an outside contractor to search individual computers for tens of thousands of missing e-mails that disappeared between 2003 and 2005 and instructed information technology experts conducting the search apparently have been told not to try and locate hundreds of thousands of missing e-mails from March 2003 to September 2003, a crucial timeframe that encompasses the start of the Iraq war, and the leak of covert CIA operative Valerie Plame Wilson.

"CREW has learned that the White House has now completed its analysis of the missing email problem and confirmed that email is missing for as many as 225 days," said a statement posted on CREW's website. "In addition, the White House is about to begin selecting, or has already selected, a contractor to restore the missing email, although it is CREW's understanding that the White House does not intend to use backup tapes predating October 2003.

In April 2007, CREW published a report entitled, "WITHOUT A TRACE: The Missing White House Emails and Violations of the Presidential Records Act," outlining the widespread failures by the White House to retain its emails. In its report, CREW said that "although [then-] White House counsel [Harriet Miers] was provided a detailed briefing of this analysis, and a plan of action to recover the missing email was developed, the plan has never been executed."

The Government Accountability Office issued a report in June that said four federal agencies it had monitored do not have a system in place to preserve emails. The agencies the GAO reviewed simply rely print-and-file systems to preserve their email records, meaning the documents can easily be destroyed or lost.

But Susan Cooper, a spokeswoman for the National Archives, said in an interview in July that her agency does not have the power to enforce the White House to comply with the Presidential Records Act.

"One thing you have to remember the key thing to remember about presidential records is that it doesn't become ours until the end of the administration," Cooper said. "The National Archives does not have any say or legal input until the end of a president's term. It's up to the president to decide how he manages his records. However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department."

In May 2007, Allen Weinstein, Archivist of the United States, said the National Archives wrote a letter to the White House when reports about the extent of the missing emails began to surface.

"Because the [Executive Office of the Presdient] email system contains records governed under both the Presidential Records Act and Federal Records Act, on May 6,2007, the National Archives sent a standard letter to [ Alan R. Swendiman] the Director of the Office of Administration requesting a report on the allegations of unauthorized destruction of Federal records," Weinstein told the House Oversight Committee in sworn testimony last month.

"While we have not received a written reply to the May 6 letter, we have been diligent in requesting an update on the status of the White House's review of these allegations and the possibility of missing Federal and Presidential emails, the White House has responded regularly that its review is still continuing.

"Furthermore, we have made our views clear, both to the White House and to this Committee, that, in the event emails are determined to be missing, it would be the responsibility of the White House to locate and restore all the emails, probably from the backup tapes, and that such a project needs to begin as soon as possible."
 

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