White House E-Mail Case Clears Another Hurdle

A public advocacy group won another legal round Feb. 11 in its efforts to force the White House to reveal the whereabouts of millions of missing Bush administration e-mails.

Rejecting the White House Office of Administration's contention that it is not subject to Freedom of Information Act requests, District Court Judge Colleen Kollar-Kotelly ordered the OA (Office of Administration) to participate in limited discovery.

With Kollar-Kotelly's ruling, the CREW (Citizens for Responsibility and Ethics in Washington) can continue its campaign to find documents prepared by the White House OA assessing the scope of the missing White House e-mail problem and its proposed recovery plan.

Discovery allows the parties in a lawsuit to provide relevant information—including documents—to each other. The court ordered the parties to submit a discovery plan by Feb. 21.

"Out of an abundance of caution, the court shall permit the parties to engage in what may be viewed as jurisdictional discovery," Kollar-Kotelly ruled. "The court shall also deny OA's request that it be permitted to provide a declaration as to OA's functions and authority in lieu of engaging in discovery."

The missing e-mails were first revealed during a congressional investigation into the firing of U.S. attorneys general. CREW claims the e-mails missing are from between March 2003 and October 2005. In addition, CREW contends that until October 2003, backup tapes allegedly containing some of the e-mails were recycled.

The Attorney General has been asked to appoint a special counsel to investigate the missing White House e-mails. Click here to read more. 

During the time period of the missing e-mails, federal investigators were probing the disclosure of Valerie Plame Wilson's covert identity. The period also covers a timeframe from the start of the Iraq war to the Bush administration's response to Hurricane Katrina.

The White House is subject to two sets of federal laws governing how it must maintain and preserve its records, the Federal Records Act and the Presidential Records Act. Both require the preservation of all e-mail.

CREW originally filed a Freedom of Information Act request with the Office of Administration on March 29, 2007, regarding records of the missing e-mails. When the office refused to turn over the information, CREW sued the White House May 23 for the information. The organization also released a report on the missing e-mails based on information obtained from two confidential sources.

Following up on CREW's information, the National Security Archive also sued the White House on Sept. 5. The National Security Archive and CREW have subsequently consolidated their legal actions against the White House to force disclosure of the missing e-mails.

U.S. Rep. Henry Waxman, D-Calif., said his Committee on Oversight and Government Reform would hold a Feb. 15 hearing on the White House e-mails.