On January 15, 2009, Federal Magistrate Judge John Facciola formally ordered the White House to search the entire Executive Office of the President (EOP) and the Office of Administration (OA) to collect and preserve all emails sent or received between March 2003 and October 2005. This includes all Executive Office of the President components’ workstations and portable media.
Judge Facciola said the issue had reached “true emergency conditions” with only “two business days before the new President takes office” and that “the importance of preserving the e-mails cannot be exaggerated,” according to the court’s Memorandum Opinion.
This is the latest development in lawsuits filed by the National Security Archive and Citizen’s for Responsibility and Ethics in Washington (CREW) against the Executive Office of the President (EOP), including the White House Office of Administration (OA), and the National Archives and Records Administration. The two groups are 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. A chronology of the National Security Archive’s litigation is available by clicking here.
The January 15th order also granted plaintiffs’ requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.
Magistrate Judge Facciola was enforcing a January 14 order resulting from a hearing before U.S. District Judge Henry Kennedy after government lawyers represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records. Kennedy issued an order requiring steps to be taken to secure files from individual computer workstations, memory sticks, zip drives, DVDs and CDs.
Despite prior contradictory statements about whether any White house e-mails had been lost, the government’s lawyers admitted they have now located at least 14 million missing e-mails and that a major restoration project has been commenced to recover additional missing e-mails from backup tapes.
The National Security Archive originally filed its case in September 2007. A subsequent lawsuit filed by CREW was consolidated with the National Security Archive’s lawsuit.
“The court made clear today that any additional work that the White House has to do before its occupants depart is its own fault,” said Meredith Fuchs, the Archive’s General Counsel. “As the magistrate judge implied, they rolled the dice hoping they would get this case thrown out of court and they lost. Now they have to make up for lost time.”
CREW’s chief counsel Anne Weismann said, “We are gratified the Court recognized that unless these materials are preserved, the country faces the loss of historic records of national importance. Even once a new administration takes office, CREW will continue seeking to hold the Bush administration accountable for its role in the disappearance of the 14 million emails.”