Judge rules in White House�s favor in missing email case
By Jason Leopold
Online Journal Contributing Writer
Jun 19, 2008, 00:14
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 [ the 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
In May 2007, CREW sued the Office of Administration for
records regarding missing White House emails 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 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 emails,� 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. Its 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
An internal investigation by officials in the Office of
Administration concluded that emails 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 emails 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 emails
could not be located in either Cheney�s office or the Executive Office of the
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
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.
Leopold is the author of "News Junkie," a memoir. Visit
www.newsjunkiebook.com for a
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