Court lets e-mail case against administration proceed

The case will continue for two groups suing the Bush administration and the head of the National Archives and Records Administration (NARA) over the alleged loss of millions of White House e-mail messages.

U.S. District Court Judge Henry Kennedy on Nov. 10 denied the administration’s motion to dismiss the claims made by Citizens for Responsibility and Ethics in Washington (CREW) and The National Security Archive (NSA), clearing the way for their consolidated lawsuit to continue.

The groups filed complaints that alleged the Bush administration violated the Federal Records Act (FRA) by not recovering, restoring and preserving electronic communications and establishing an electronic records management system that complies with the FRA.

The Bush administration argued that the case should be dismissed, in part, on the grounds that the relief sought is not available under the FRA and the court does not have jurisdiction to order the retrieval of federal records or the establishment of a records keeping system. The administration also argued that the groups lacked the standing to bring their claims.

However, the judge ruled that the court did have jurisdiction to review the adequacy of the administration’s record-keeping guidelines and that the plaintiffs have standing to seek the injunctive relief.

Since White House offices switched their e-mail systems from Lotus Notes to Microsoft Exchange in 2002, they have relied primarily on a manual process called “journaling” in which e-mail messages are manually named and saved as .pst files on White House servers. The groups say that not replacing the Automated Records Management System that was abandoned in 2002 with another automated archive system contributed to at least five million e-mail messages being lost.

The messages that allegedly were lost cover from 2003 to 2005, a period that includes the invasion of Iraq, key developments in the Valerie Plame leak investigation and the government's
response to Hurricane Katrina.

The groups allege that officials of the White House and NARA violated the FRA by not taking action to correct the problems of the alleged deletion of millions of e-mail messages and to improve a White House’s records preservation system. CREW and NSA want the court to compel the restoration of e-mail messages before the messages become unrecoverable and to establish an “adequate electronic records management system” for preserving White House e-mail messages.

Lawyers for the groups suing the administration hailed the decision, and the case is ongoing.

About the Author

Ben Bain is a reporter for Federal Computer Week.

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