Court moves to preserve White House e-mail messages

 Citing “emergency conditions,” a federal court today ordered the Bush administration to take further steps to preserve millions of e-mail messages sent during a crucial time in the administration and are the subject of ongoing litigation. In a related development, government lawyers said today that millions of e-mail messages were not actually missing as the private groups suing the Executive Office of the President (EOP) have claimed.

 Today’s developments come just days before the end of the Bush administration. Then, records from many components of the Bush administration will be handed over to the National Archives and Records Administration (NARA) for safekeeping under the Presidential Records Act (PRA). However, records from White House components considered federal agencies and subject to the Federal Records Act (FRA) are handled differently, and those records are the subject of the lawsuit. The messages that are alleged to be missing are from the period that includes the invasion of Iraq, key developments in the Valerie Plame leak investigation and the government's response to Hurricane Katrina.

 Today’s order from John Facciola, a federal magistrate in the U.S. District Court for the District of ColumbiaDistrict of Columbia, expanded on an order issued on Jan. 14 by the same court. Facciola said the order filed on Jan. 14 which required the White House officials to search workstations for any e-mails from March 2003 to October 2005 time frame from which the messages are alleged to be missing applied all parts of the EOP,  regardless of whether they fall under the PRA or the FRA.

 Citizens for Responsibility and Ethics in Washington and George Washington University’s National Security Archive, the groups that sued for the e-mail messages, allege that the Bush administration failed to live up to its responsibilities under the FRA by not recovering, restoring and preserving electronic communications and establishing an electronic records management system that complies with the FRA.

 Also, they argue that by not having an adequate electronic archiving system messages covered by the PRA and the FRA have been co-mingled. The groups cite a study done by administration officials in 2005 that identified hundreds of days in which individual components of the White House had no e-mail messages archived. The groups say those gaps entail millions of missing e-mail messages.

 However, in a court filing today, lawyers for the administration argued that a recent review by the White House’s Office of the Chief Information Officer (OCIO) determined that the review conducted in 2005 to be “flawed and limited” and had “technological limitations.”

 “The 2005 review presented inaccurate message counts, concluding that approximately 81 million messages existed in the EOP e-mail system in 2005 when, in fact, approximately 95 million e-mail messages were preserved in the EOP e-mail system,” the filing said. “Those ‘14 million’ messages were therefore never 'missing,' but simply uncounted in the 2005 review.”

However, Facciola today ordered that officials of the Executive Office of the President search all computers and media that could contain e-mail messages regardless of whether they fall under the PRA or FRA.

Furthermore he ordered:

 

  • Any messages that are found as a result of the search to be placed on secure and accessible portable medium and maintained by NARA separately from other records.

 

  • The backup tapes from which e-mail messages have been restored to remain in their present location,

 

  • Additional media which contain restored messages remain where they are.

 

  • The administration give the court an inventory of all backup tapes and additional media that are collected in compliance with the court order.

 

  • The administration collect and preserve information it would have to file as the administrative record in this case, as well as preserve other information relevant to the case. 

About the Author

Ben Bain is a reporter for Federal Computer Week.

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