Court Sets Deadline for White House Answers on Missing E-mail

National Security Archive 

Update, April 24, 2008

Court Sets Deadline for White House Answers on Missing E-mail

Magistrate Judge Cites "Lack of Precision" in White House Statements

Order Could Force White House to Save Individual Workstation Files;
Action Comes in Response to Archive Motion

http://www.nsarchive.org

For more information contact:
Meredith Fuchs - 202/994-7000

John B. Williams/Sheila L. Shadmand [Jones Day] - 202/879-3939

Washington, D.C., April 24, 2008 - Responding to the National Security Archive's
motion in the pending White House e-mail lawsuit, Magistrate Judge John M.
Facciola of the U.S. District Court today ordered the White House to provide
"precise information" about the users of the e-mail system from 2003 to 2005
and how many of their hard drives still
survive today.

Citing the "lack of precision" in White House statements and its changing story
about which backup tapes have been preserved, Magistrate Judge Facciola also ordered
the White House to "resolve any ambiguities ... once and for all" and identify
the specific dates between March 2003 and October 2003 for which no backup tape
exists.

The magistrate judge also recommended that District Judge Henry H. Kennedy issue
a series of orders that would compel the White House to search the individual
workstations of White House staff, preserve the personal folders
(.PST files in the Microsoft environment) where e-mail may have been stored,
and secure any portable or external media that may contain e-mail from March 2003
to October 2005. Referring to the White House position that it has no formal
program for distributing "hard or external drives, CDs, DVDs, jump, zip, hard,
r floppy disks," Magistrate Judge Facciola commented "[o]ne would hope that
the components have filled the void left by [Office of Chief Information Officer]
by implementing policies and procedures to "track and manage" the removal and/or
transfer of [Executive Office of the President] data..."

"It is remarkable that the EOP, absent this Court's order, has not taken the most
elementary steps to preserve very basic sources of the missing e-mail --
steps that, even as the Court notes, should in this day and age be conducted
as a matter of course in any litigation," commented Sheila Shadmand of Jones Day,
counsel for the Archive.

"The Court is reacting to the inconsistencies in the White House statements:
e-mail are lost one day, the next they are not; e-mails are recoverable,
then they are not; backup media is saved, then it is not," added Meredith Fuchs,
the Archive's General Counsel. 
"What worries us is that time is passing –
there are only 8 ½ more months until this administration leaves office and
if nothing is done soon not only could the e-mails disappear for good, but the
federal records that are commingled with the presidential records could get
swept away and become inaccessible for the next 12 years."
"This ruling is a major victory for accountability at the White House,"
commented Tom Blanton, director of the Archive. "We have seen delay after delay,
and constantly changing stories, none of which come up to the standards that
are required by law."

The ruling comes in litigation brought by the National Security Archive
against the Executive Office of the President and the National Archives
and Records Administration to preserve and restore missing e-mail federal records.
A chronology of the litigation is available here. The suit was filed on
September 5, 2007; a subsequent virtually identical lawsuit filed by
Citizens for Responsibility and Ethics in Washington has been consolidated
with the Archive's lawsuit.

Visit the Web site of the National Security Archive for more information about
today's posting.

http://www.nsarchive.org

Judge orders White House to clarify whether or not missing e-mails are recoverable

Nick Langewis Published: Thursday April 24, 2008 |
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Today, Magistrate Judge John M. Facciola of the U.S. District Court ordered the White House to once and for all provide "precise information" about its e-mail system.

The order stems from a lawsuit by the National Security Archive, filed on September 5, 2007 against the Executive Office of the President and the National Archives and Records Administration, claiming that a possible 5-to-10 million e-mails were either improperly preserved as Presidential records, as required by law, or lost entirely.

House Judiciary Committee chairman Sen. Patrick Leahy (D-VT), in a 2007 address, called such a breach of record-keeping requirements reminiscent of the "18-minute gap" in the infamous Nixon White House tapes, subpoenaed during the Watergate scandal.

The "missing" e-mails cover a 473-day period, which includes the date of CIA agent Valerie Plame's outing and a string of U.S. Attorney firings widely believed to have been politically motivated. The White House was ordered to preserve all known e-mail records in November of 2007.

"This ruling is a major victory for accountability at the White House," said Tom Blanton, National Security Archive director. "We have seen delay after delay, and constantly changing stories, none of which come up to the standards that are required by law."

Between late 2001 and early 2002, the Automated Records Management System (ARMS), put in place by the Clinton Administration to store e-mail records, was dismantled, with the Bush Administration proposing a switch to ECRMS, or the Electronic Communications Records Management System. In the meantime, a temporary procedure of manually archiving each staffer's records was put in place.

E-mails began to disappear on January 3, 2003, and ECRMS was ultimately never put in place. Backup tapes were re-used until October of 2003.

LINDA P. CAMPBELL: Freedom of Information: Mushrooms may like the dark; democracy doesn't need it

McClatchy Newspapers

Tom Blanton wasn't nuts when he told a room full of open-government fans to act squirrely.

Scientists have found, he informed us last Friday, that "squirrels have no idea where they've dug that hole and put that nut." They survive the winter by planting enough nuts that "wherever they go, they're likely to uncover a couple of buried items," he explained. "But if not enough squirrels plant not enough nuts, they're all going to starve."

Then he drove the point home: "

As news gatherers, as news publishers and as citizens, we're going to starve - our democracy, our accountable government, our information flows - unless we get out there and plant some FOIA requests, write some stories and get the story out."

Blanton and the research organization he heads, the National Security Archive, have made it their mission to plant Freedom of Information Act requests all across the federal government to shed light on what agencies are doing in our name. FOIA is the 1966 federal law that requires agencies to give people records they ask for (with certain exceptions), supposedly in timely fashion and without regard to why the information is being sought.

Through FOIA, the archive has uncovered fascinating nuggets of history as well as documentary treasure troves of insight into how government operates.

Right now, the archive's Web page, www.nsarchive.org, links to:

• -Declassified histories compiled by the Air Force that show CIA involvement in combat air attacks during the Vietnam War.
• -Stories about the archive's continuing lawsuit seeking to force the Bush White House to preserve and restore thousands of missing e-mails.
• -An analysis of open records practices in Mexico.
• -The CIA's "family jewels" - a 693-page file detailing years of domestic spying and other improper practices by the CIA.
• -And there's "Nixon meets Elvis." It turned out, archive staffers discovered, that the document that people most wanted to see at the National Archives - home of our nation's founding documents and other precious papers - was a photo of President Nixon hosting Elvis Presley at the White House on Dec. 21, 1970.

National Security Archive staff filed a FOIA request for all related documents and received a file that included Elvis' letter on American Airlines stationery seeking a meeting with Nixon; talking points recommending that the president ask the singer to create a TV special about getting high on life, not drugs; and a photo of Nixon inspecting Elvis' cufflinks. (You can see these on the group's site.)

During its history, the privately funded group has filed more than 35,000 open records requests and collected 8 million to 10 million documents, Blanton told an audience at the First Amendment Awards banquet sponsored by the Society of Professional Journalists' Fort Worth chapter last Friday.

Release of the "family jewels" last year came about after the archive had asked a range of federal agencies for their 10 oldest pending FOIA requests. Though the law sets specific deadlines for turning over information requested by the public, they often aren't met - sometimes for years. A request for the "family jewels" had sat unfilled for 15 years, Blanton said.

Because of a 2005 executive order signed by President Bush and because of FOIA changes pushed into law last year by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, many agencies are reducing their backlogs of old open-records requests. But the two senators are continuing to try to strengthen FOIA.

The law never has been really popular with those who must comply with it, Blanton said. President Lyndon Johnson signed it grudgingly.

In 1974, President Ford vetoed a bill designed to put teeth into it, on the advice of two key aides and a Justice Department lawyer: Dick Cheney (now vice president), Donald Rumsfeld (later defense secretary) and Antonin Scalia (now a Supreme Court justice).

Congress overrode Ford - to the enduring public benefit.

There's no doubt that the U.S. government is among the world's most open. But it helps that nosy reporters ask questions and that courageous government employees are willing to blow the whistle when they see questionable practices and wrongdoing.

"The good news is that when you shine a light on things, they get fixed," Blanton said.

Mushrooms might thrive in the dark, but democracy doesn't do so well.

ABOUT THE WRITER

Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at lcampbell@star-telegram.com.