Battle Over Missing White House E-Mails Escalates

The on-going battle to gain access to missing White House e-mails intensified this week as the National Security Archive (NSA) filed suit against the Executive Office of the President (EOP), including the White House Office of Administration (OA), and the National Archives and Records Administration. NSA is seeking the recovery and preservation of millions of e-mail messages that were apparently deleted from White House computers between March 2003 and October 2005. The National Security Archive is a member of the National Coalition for History.

The National Security Archive’s lawsuit is the latest in a series of efforts by Congressional committees and watchdog groups to force the White House to address the issue of the missing electronic communications. White House officials have acknowledged in press and Congressional briefings that e-mails are missing from the White House archive. In 2002, the Bush administration abandoned the electronic records management system put in place by the Clinton White House.

Earlier this year, Citizens for Ethics in Washington (CREW) filed a FOIA request with the White House’s OA for records that would document the White House’s knowledge of the missing emails, its failure to restore the email or put in place an electronic record-keeping system that would prevent this problem, and the possibility that the emails were purposefully deleted. CREW has sued the White House Office of Administration for failing to respond to their request. CREW alleges that more than 5 million e-mails are missing from the White House servers.

Rather than complying with the request for information about the missing emails, the White House recently exempted the Office of Administration (OA) from compliance with the Freedom of Information Act (FOIA).

In a motion filed in federal court last month in response to the CREW suit, the Justice Department declared that the OA is not subject to FOIA despite the fact that the office complied with 65 FOIA requests in 2006. The Justice Department argued that past compliance with FOIA was not determinative that OA in fact was an “agency” that was covered by FOIA. The offices of President Bush and Vice President Cheney are not subject to FOIA.

Recently, the White House changed its FOIA website to exclude the OA from White House entities subject to FOIA. A note in the FOIA sections of the OA website now says, “The Office of Administration, whose sole function is to advise and assist the President, and which has no substantial independent authority, is not subject to FOIA and related authorities.” Under Office of Administration’s FOIA Regulations, it says, “The OA’s Regulations concerning FOIA are currently being updated.” OA’s annual FOIA reports are available on the White House website for 1996-2006. In 2006, OA processed 65 requests and spent $87,772 on FOIA processing (including appeals).

Representative Henry Waxman [D-CA], Chairman of the House Oversight and Reform Committee, is also demanding that the OA turn over its analysis of the email system, conducted by its Chief Information Officer.