April 18, 2008

Ruling on Preservation of White House E-Mails Awaited;
New Law Proposed to Address Destruction of Electronic Records

Washington DC, April 17, 2008 - Today, the White House sought clarification from the court concerning its ability to restore missing records from backup tapes that are currently being preserved. The White House inquiry comes as the National Security Archive continues to await a ruling by the United States District Court for the District of Columbia on its pending motion to extend an e-mail preservation order against the Executive Office of the President (EOP) and to depose relevant witnesses about the state of the White House’s e-mail archiving system. A new bill to establish procedures to assure the preservation of electronic federal and presidential records was introduced this week by Rep. Henry A. Waxman (D-CA), Rep. Wm. Lacy Clay (D-MO), and Rep. Paul W. Hodes (D-NH) (H.R. 5811), but that bill would have no effect on the e-mails that are the subject of the pending lawsuit. A new chronology of events in the White House e-mail lawsuits is available here.

The need for broader preservation of electronically stored e-mails came to light after the White House made numerous contradictory statements about whether e-mails are missing or were not properly preserved. These statements ranged from a letter written in the context of the Scooter Libby-Valerie Plame matter by Special Prosecutor Patrick Fitzgerald claiming e-mails from the Office of the Vice President had not been archived, to congressional briefings by White House lawyers about the missing e-mails, to a declaration in the National Security Archive’s lawsuit casting doubt on the likelihood that e-mails are missing, to outright denials by White House spokespeople.

The White House’s inconsistent statements led the House Oversight and Government Reform Committee to hold a February 26 hearing on the state and preservation of White House e-mails. At the hearing, it was disclosed that the White House Office of Administration has made repeated representations that it will soon know whether e-mails are in fact missing, but OA has continued to extend the timeframe for that determination. Currently, the White House estimates that it will not complete the first phase of its review until summer 2008 and admits that any recovery efforts will not be completed until after the end of the Bush Administration. It was also disclosed at the hearing that previous back-up tape restoration efforts related to the prosecution of White House aide Scooter Libby were not initially successful because missing e-mails could not be found in the back-up files where they should have been stored.

On the heels of the House hearing, the National Security Archive moved for a broader preservation order to ensure preservation of e-mails created during the period when the White House recycled (or overwrote) its backup tapes. The Archive also argued that it should be granted leave to depose White House Chief Information Officer Theresa Payton, to clarify contradictions among the defendants’ statements and to determine whether Ms. Payton or another witness has personal knowledge about EOP’s preservation of e-mails. The White House opposed the Archive’s motion, but Magistrate Judge Facciola ordered it to show cause why it should not be required to forensically copy all its electronic storage media.

A declaration filed by Chief Information Officer Payton in response to the Magistrate’s order made three central points. First, she claimed that it is unlikely that any computers used between 2003 and 2005 are still in use today because the White House systematically “refreshes” one-third of its computers each year. Despite this formal computer replacement program, Ms. Payton also claimed that the White House does not know which computers were replaced at what time. Second, she asserted that the White House ships the hard drives from computers that are replaced to a Department of Defense office for destruction, but she did not indicate whether any inquiry had been made as to whether some retired hard drives may still exist or why the White House did not stop shredding hard drives during the several years after it became aware that e-mails were missing. The White House apparently continued to destroy hard drives even after the National Archives and Records Administration repeatedly reminded officials about the legal implications of destruction of e-mail and after various criminal and congressional investigations required production of White House e-mail and two lawsuits were filed about the White House’s e-mail preservation problems. Third, the CIO claimed that the White House does not have any formal program for distribution, tracking, or maintenance of records stored on portable media such as external drives, CDs, and flash drives, and so it cannot determine whether there are e-mails on such media.

The Archive responded, arguing that EOP’s response failed to provide the court with facts it requested about the costs and burden of forensic copying. Supported by a declaration from an expert in forensic technology recovery, the Archive argued that the burden of making forensic copies of EOP workstations would be nominal (between $50 and $250 per workstation) compared with the likelihood that the data could be obliterated. Moreover, EOP cannot be permitted to use its destruction of hardware as an excuse for not complying with the preservation order, and it should be required to also preserve external media devices that may contain e-mail data and to query workstations to determine the time period of their use.

It was recently revealed in the course of FOIA litigation about missing White House e-mails that the Office of Administration, which previously was considered an agency under the Federal Records Act (FRA) and the Freedom of Information Act (FOIA), decided to change its status to an office whose records are subject only to the Presidential Records Act (PRA). That revelation came in a FOIA lawsuit brought by Citizens for Responsibility and Ethics in Washington seeking records about the missing e-mails. The Office of Administration’s status change was contrary to longstanding government determinations that it was an agency subject to the FRA and the FOIA.

The National Security Archive is currently awaiting rulings on its motion to extend the preservation order and conduct depositions, its motion to expedite commencement of discovery, and the White House’s motion to dismiss.

The White House and E-mail

The management of electronic mail has proven a challenge for three administrations prior to that of President George W. Bush. E-mails were used in the Reagan White House by the National Security Council (“NSC”). In an important sub-plot to the larger drama surrounding Col. Oliver North’s destruction of National Security Council files, a Federal court ruled that e-mail correspondence between North and National Security Advisor John Poindexter were admissible as evidence to support charges that the men were involved in a scheme to funnel arms to Iran, to secure release of hostages held there and later to divert profits to the anti-Sandinista group fighting in Nicaragua. The messages had been deleted from the computers but were recovered from back up tapes.

Then on the last day of the Reagan presidency, National Security Archive staff discovered that outgoing Reagan administration officials planned to destroy all electronic communication records and back-up tapes. Lawyers for the Archive, the Center for National Security Studies, and others filed FOIA requests and a lawsuit to halt the plan, only 30 hours before the scheduled destruction. In a decision delivered on the evening of the 1989 inauguration, a Federal judge ruled in favor of the plaintiffs and granted a Temporary Restraining Order halting the destruction of e-mails. Subsequent litigation to compel the Bush administration to comply with records laws culminated in early 1993 with the D.C. Circuit Court of Appeals deciding in Armstrong v. Executive Office of the President that past NSC and EOP electronic record keeping guidelines failed to meet FRA requirements, and their current electronic record keeping guidelines were insufficient, a decision that prompted review and improvement of EOP e-mail archiving policies.

Responding to Armstrong v. Executive Office of the President, Clinton administration officials enacted more stringent e-mail policies. Despite these efforts, a pair of server malfunctions early on in the Clinton presidency allowed millions of e-mails to circumvent the EOP automatic archiving program. Discovered as the White House began to respond to a flurry of subpoenas regarding Whitewater, the Monica Lewinsky scandal, and questions surrounding Vice President Al Gore’s political fund-raising activities, these missing files gave rise to allegations of conspiracy and prompted several days of House Committee on Oversight and Government Regulations (“Oversight Committee”) hearings in the spring on 2000. Ultimately, the Clinton White House signed a Memorandum of Understanding with the National Archives and Record Administration, turning over custody of all e-mails, back-up tapes and electronic files. More than a million files were eventually restored, but only after an effort that lasted more than a year, extended into the incoming Bush Presidency, and cost in excess of $13 million.

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