CREW: White House misled court about missing e-mail

One of the groups suing the Bush administration over the alleged loss of millions of e-mail messages asked a federal court to hold administration officials in contempt, saying the Office of Administration’s chief information officer appeared to have knowingly submitted false, misleading and incomplete information to the court in January.

As part of ongoing litigation, Citizens for Responsibility and Ethics in Washington, a government watchdog group, requested March 6 that the court order Bush administration defendants to show cause why they should not be held in civil contempt of court. CREW also asked the court to order the administration to pay some of CREW’s legal fees and to allow the group to take a deposition from the CIO as part of the discovery process.

CREW and the George Washington University’s National Security Archive are part of a consolidated lawsuit alleging that the Bush administration failed to meet legal obligations under the Presidential Records Act by not preserving millions of e-mail messages sent and received between 2003 and 2005.

CREW’s latest motion states that the answers that Theresa Payton, CIO at the Executive Office of the President’s Office of Administration, submitted to the court Jan. 15 on behalf of the administration have since been proven to be incorrect and misleading.

In January, the court asked Payton to answer questions about the White House’s backup tape system to help it determine whether to grant CREW’s request for expedited discovery.

Specifically, CREW says that during a House Oversight and Government Reform Committee hearing Feb. 26, new details emerged about a chart that White House officials presented to the committee last year that showed 473 days between 2003 and 2005 for which components of EOP had no archived e-mail messages.

That evidence cannot be reconciled with Payton’s responses in the Jan. 15 affidavit, the group said.

In written responses to questions from the committee’s chairman, Steven McDevitt, a former senior White House official who worked in the CIO’s office from September 2002 to 2006, said the chart, which he was in charge of creating, was the result of many weeks of analysis that involved more than a dozen people. He added that complete analysis was about 250 pages long and that a “high level of formality and review was performed” and independent analysis and verification were performed by a separate set of contractors.

CREW says that this conflicts with Payton’s sworn January declaration in which she suggested that there was an apparent lack of documentation as to whether anomalies in e-mail archives from 2003 to 2005 existed and that the chart was the work of one former White House employee — McDevitt.

Payton told lawmakers at the Feb. 26 hearing that the White House is still reviewing the extent to which any e-mail messages may be missing and reiterated her concerns about the veracity of the 2005 study led by McDevitt. She said her office is in the second stage of its study and has 17 million e-mail messages that it has yet to attribute to a specific component.

Republicans on the committee also questioned McDevitt’s motivations and the reliability of his answers, which were reviewed by the White House before they were submitted to the committee.

In its March 6 filing, CREW also said that Payton’s answers in her sworn statement, in which she said that her office did not know if any e-mail messages were not properly preserved in archives, are “false and appear designed to mislead the court into believing that both discovery and any additional interim relief are unnecessary.”

CREW’s motion also says that evidence suggests that Payton and other White House officials were aware of problems that the White House had encountered when trying to restore e-mail using backup tapes leading up to the Valerie Plame trial in October 2003. The group says that Payton, in her Jan. 15 affidavit, failed to acknowledge that the Office of the Vice President's e-mail for dates in late September to early October 2003, which could not at first be located, were not immediately available on the backup tapes and had to be recreated on Oct. 21, 2003.

CREW says that this shows that EOP defendants knew that some messages may have gone missing. Furthermore, the group also questioned the veracity of Payton's Jan. 15 statement that backup media should contain substantially all e-mails sent or received in the 2003-2005 period.

The White House did not immediately respond to requests for comment about the filing.

About the Author

Ben Bain is a reporter for Federal Computer Week.


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