On December 14, the National Security Archive (NSA) and Citizens for Responsibility and Ethics in Washington (CREW) reached a settlement with the Obama administration of their long-running lawsuits challenging the failure of the Bush administration and the National Archives and Records Administration (NARA) to take any action after confronted with evidence that millions of emails had gone missing from Bush White House servers over a two and one-half year period. An estimated 22 million e-mails that were assumed lost were recovered as a result of the lawsuits.

In April 2007, CREW released a report based on information from two confidential sources detailing loss of more than 5 million White House e-mails generated between March 2003 and October 2005. The National Security Archive originally filed its case in September 2007 seeking the recovery and preservation of millions of e-mails under the Federal Records Act and the Administrative Procedure Act. A subsequent lawsuit filed by CREW in 2007 was eventually consolidated with the National Security Archive’s lawsuit.

Under the terms of the settlement, the Obama administration agreed that the Executive Office of the President (EOP) will restore a total of 94 days of missing emails, which will then be sent to NARA for preservation and eventual access under either the Presidential Records Act or the Federal Records Act. The dates for restoration were chosen based on email volume and external events because there simply was not enough money to restore all the missing emails. In addition, the EOP will continue to provide CREW and the National Security Archive with records documenting the missing email problem, the response of the Bush White House to that problem, and the options the Bush White House considered for preserving electronic records, but inexplicably rejected.

To date, the Obama White House has produced thousands of pages of documents relating to these issues, all of which CREW has posted on www.governmentdocs.org. Finally, the EOP will be providing a publicly releasable description of the system it now uses to manage and preserve electronic records, including its email archiving and backup systems. CREW and the National Security Archive will then dismiss their lawsuits.

Melanie Sloan, CREW’s Executive Director, said, “We may never know exactly what happened to all the missing emails, and which Bush administration officials were involved in the cover-up, but we do know the American public never got the full story.” After the Obama administration produces all the promised records, CREW will release a report, providing as much detail as possible. Sloan continued, “The Obama administration, which inherited the lawsuits and the dysfunctional White House email system, has done a terrific job straightening out the mess.”

“We now know that many poor choices were made during the Bush Administration and there was little concern about the availability of e-mail records despite the fact that they were contending with regular subpoenas for records and had a legal obligation to preserve their records for the nation’s long term historical memory,” explained Meredith Fuchs, the National Security Archive’s General Counsel.