Court: Lawsuit over missing White House e-mails must continue
Nick Juliano
Published: Monday November 10, 2008

Print This  Email This

A judge on Monday dismissed the White House's attempt to scuttle a lawsuit stemming from the Bush administration's failure to archive at least 5 million internal e-mails, as required by federal law.

District Court Judge Henry H. Kennedy's ruling was the first formal consideration of the arguments in a case brought more than a year ago by two open-government nonprofit groups. The National Security Archive and Citizens for Responsibility and Ethics in Washington sued the Executive Office of the President, the Office of Administration, the National Archives and Records Administration and others in an effort to force the White House to recover the missing e-mails and establish an adequate records management system.

A copy of Kennedy's opinion is available here.

Kennedy ruled that CREW and the Archives raised valid claims about the failure to archive documents that must be maintained in line with the Federal Records Act and that the plaintiffs have standing to move forward with their lawsuit.

"This is a pretty resounding victory for us," Melanie Sloan, CREW's executive director, told RAW STORY. "It says the White House will be answerable for millions of missing e-mails."

With Monday's ruling, CREW and the Archives hope to be able to force more disclosures from the White House regarding the extent of the missing documents.

"Now this is a case that is certainly not going to be dismissed, so now they have to talk to us," Meredith Fuchs, general counsel to the National Security Archive, said in an interview. "It means the government has to give us a little more information about what they're doing."

A magistrate judge ruled this summer that the White House would have to preserve records on back-up tapes and computer hard-drives. The plaintiffs are now expected to seek an expanded preservation order and may attempt to secure depositions from government officials who oversaw the archiving process.

At issue in the case are as many as 10 million e-mails that went missing from internal servers on 473 days between March 2003 and October 2005. An unknown number of the e-mails may be lost forever because the White House reused computer backup tapes that were meant to allow recovery of files that were deleted from the internal servers.

In 2002, the Bush administration abandoned use of the Automated Records Management System, which had been instituted under President Clinton. The system automatically captured and preserved all e-mail sent to and from the White House and archived different pieces of mail to comply with the Federal Records Act and Presidential Records Act. The White House did not replace that system with any comprehensive method to archive e-mails.

The White House has remained tight-lipped about the extent of the archiving failure. In this case, as in virtually every other instance where it is questioned, the administration has argued that executive power and a prerogative for secrecy outweigh the public's right to know and the need for oversight from other branches of government.

There is hope that Monday's decision will force a change in that outlook.

"What this decision says is that's not right," Fuchs told RAW STORY. "In fact, the public has a role ... and the public can say to the Executive Office of the President, 'You have to follow the law.'"