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White House Wins a Round in Missing E-Mail Legal Battle

By Erika Morphy
Jun 17, 2008 3:38 PM PT

A federal judge has ruled that an administrative office within the Executive Office of the President is not subject to the 41-year-old Freedom of Information Act. The decision is the latest hurdle blocking a many-fronted effort to determine how an alleged 10 million White House e-mails apparently disappeared.

White House Wins a Round in Missing E-Mail Legal Battle

Public policy advocates who are pressing the legal action against the Bush Administration say the decision is disappointing, but they insist it will have little impact on the larger case against White House, which is still pending.

The Citizens for Responsibility and Ethics in Washington filed suit against the Office of Administration in May 2007, seeking information about the missing White House e-mails and the OA's assessment of the scope of the problem. In August of that year, the OA argued that it had no obligation to comply with FOIA on the grounds that it was not an agency.

Past Behavior Notwithstanding

Prior to making that argument, the OA had agreed to provide the records, according to CREW.

CREW also noted that the White House Web site previously described OA as an "agency" -- and even included regulations for processing FOIA requests.

D.C. District Court Judge Colleen Kollar-Kotelly's finds in CREW v. Office of Administration that OA is not an agency, as it does not exercise substantial independent authority.

CREW has appealed the ruling. "The fact is, until CREW asked for documents pertaining to this problem, the Office of Administration routinely processed FOIA requests," said CREW executive director, Melanie Sloan. "Only because the administration has so much to hide here has the White House taken the unprecedented position that OA is not subject to the FOIA."

CREW did not return a call to the E-Commerce Times in time for publication.

No HIdden Agenda

Emotions may be running high in this case, but this particular ruling is a straightforward one, Peter Vogel, a partner with Gardere Wynne Sewell, told the E-Commerce Times.

"The judge made her decision based on the facts of how the OA operates and its duties," he said. "The fact that it provided information under FOIA before is not relevant."

CREW is only one institution targeting the White House for information on the missing e-mails. Its suit was limited to seeking just one piece of information in a complicated case, according to Meredith Fuchs, general counsel with the National Security Archive, a research institution at George Washington University, which is also pursuing legal action against the White House in this matter.

"It is a disappointing ruling, but that doesn't mean the rest of the Executive Office of the President is exempt from FOIA as well," she told the E-Commerce Times.

Millions Vanished

Last September, the National Security Archive sued the White House in the U.S. District Court for the District of Columbia, seeking the recovery and preservation of more than 5 million e-mail messages that appeared to have been deleted from White House computers between March 2003 and October 2005.

It named as defendants the Executive Office of the President and offices that the National Security Archive maintained are subject to the Federal Records Act, including the Office of Administration and the National Archives and Records Administration. The National Security Archive was the institution mounting the first suits against the government in the early 1990s, when it was still unclear whether e-mails should be treated as government records.

While the OA is responsible for the e-mail systems in the Executive Office of the President, Fuchs said, the agencies under its purview -- the Office of Management and Budget and the U.S. Trade Representative -- cannot make an end run around their FOIA obligations by handing over custody of their e-mails to what has not been deemed a non-federal agency.

CREW's case was filed before it was clear that e-mails were missing, she noted. Since then, the Bush Administration has confirmed that e-mails are missing.

Visit the National Security Archive to view a timeline of the events.

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