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
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.
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
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.”
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
- The backup
tapes from which e-mail messages have been restored to remain in their
- Additional media
which contain restored messages remain where they are.
administration give the court an inventory of all backup tapes and additional media that
are collected in compliance with the court order.
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.
Ben Bain is a reporter for Federal Computer Week.