White House wins round in e-mail fight

A federal court ruled today that the White House’s Office of Administration (OA) is not a federal agency and therefore does not have to release thousands of pages of documents that detail the White House’s e-mail archive practices. Those practices are the subject of ongoing litigation and a congressional investigation.

Citizens for Ethics and Responsibility in Washington (CREW) sued the White House in May 2007 after the organization was unsatisfied with the administration’s response to two Freedom of Information Act requests for information from the White House’s investigation into potential loss of records concerning e-mails. However, today a federal district court judge ruled that the OA is not required to release those documents because it solely advises and assists the president and therefore should not be considered a federal agency subject to FOIA requests.

“OA lacks the type of substantial independent authority that the D.C. Circuit [Court] has found indicative of agency status for other EOP [Executive Office of the President] components…and because the nature of OA’s delegated authority is dissimilar to that of other EOP units that have been found to be agencies subject to the FOIA,” U.S. District Judge Colleen Kollar-Kotelly wrote.

Courts have found that executive office components such as the Office of Management and Budget, Council on Environmental Quality, and Office of Science and Technology Policy are agencies and therefore subject to FOIA requests. However, Kollar-Kotelly ruled that OA did not have similar authority.

In a separate but related action, CREW and the George Washington University’s National Security Archive filed complaints against the White House in September for allegedly not satisfying federal records laws by failing to archive millions of e-mail messages from 2003 to 2005, a period that includes the invasion of Iraq, key developments in the Valerie Plame investigation and the government's response to Hurricane Katrina. That case is ongoing.

Through the FOIA requests, CREW was seeking documentation from the White House related to an internal investigation of potential e-mail loss that staff members there conducted in 2005. Some of the results of that study, which showed hundreds of days when the White House that had no e-mail records, have been released in congressional hearings. The White House now disputes the veracity of those findings.

The administration did release 50 pages of documents to CREW in June 2007 but at that time also said it was withholding hundreds of more potentially responsive documents. Most important, the White House at that time asserted that OA was not a federal agency and therefore was not subject to FOIA requests. The administration argued that CREW’s suit should be dismissed on those grounds.

The statement that OA was not subject to FOIA represented a shift for OA, which had published FOIA regulations from 1980 until August 2007. However, the court ruled today that that history alone was not enough to determine agency status.

The decision came as a blow to CREW, which won a procedural battle in the case in February when the judge agreed to grant very limited discovery to both sides, which resulted in OA giving CREW more than 1,300 pages of documents and making OA’s then-director available for deposition.

CREW said today it had already appealed the decision. The group’s executive director, Melanie Sloan,  said the administration had been “using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails.”

Anne Weismann, CREW’s chief counsel, said if litigation is not concluded by the end of the administration, the records will fall under the Presidential Records Act and will not be available for viewing for years.

About the Author

Ben Bain is a reporter for Federal Computer Week.

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