In a last-minute filing in federal court, the White House admitted Jan. 15 that it had recycled computer backup tapes containing millions of missing e-mails related to the early years of the Bush administration.
However, administration officials refused to admit that any e-mails are actually missing.
Instead, in a sworn deposition, Theresa Payton, CIO for the Office of Administration, said her office "has undertaken an independent effort to determine whether there may be anomalies in Exchange e-mail counts" prior to October 2003.
Payton's deposition was filed shortly before midnight Jan. 15, only minutes before a court-imposed deadline to answer lingering questions about the backup copies of the missing White House e-mails.
The missing e-mails were first revealed during a congressional investigation of the firing of U.S. attorneys general. The period they cover also includes the start of the Iraq war and the time when a White House official publicly identified Valerie Plame as a CIA operative.
"Two years after a special prosecutor concluded that key e-mails were missing from the White House system administered by the Office of Administration, the White House astonishingly now admits it has no backup tapes from before October 2003 and doesn't know if any e-mails are missing," Tom Blanton, director of the National Security Archive, said in a statement.
The National Security Archive, an independent, nongovernmental research institute and library located at George Washington University, and CREW (Citizens for Responsibility and Ethics in Washington) have been pressuring the White House for public disclosure of the e-mails.
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 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. The House Committee on Oversight and Government Reform is also seeking additional information on the missing e-mails.
The White House admits the e-mails are missing and that in 2002 it abandoned the electronic records management system put in place by the Clinton administration. The Presidential Records Act requires that all White House e-mail be saved.
"It strikes me as odd that they recognized a problem and changed their practice in 2003 to start saving the backups, but four-and-a-half years later they still have not yet figured out whether or what e-mails were deleted," Meredith Fuchs, general counsel for the National Security Archive, said in a statement. "It also is troubling that the problem may have started before October 2003, and they acknowledge that backups prior to that period were recycled and are gone."
Magistrate John Facciola of the U.S. District Court for the District of Columbia on Jan. 8 ordered that the Executive Office of the President answer questions about whether the backups are identifiable by the period of time they cover or by data they contain, whether they contain e-mails created between 2003 and 2005 and whether they contain the missing e-mails.
"At this stage, this office does not know if any e-mails were not properly preserved in the archiving process," Payton said in her deposition.
CREW responded with disappointment that the White House recycled the backup tapes and noted that although the Bush administration now backs up e-mail to tape, those backups are only a "snapshot" of what was on the server at the time.
"With this new filing, the White House has admitted that although it has long known about the missing e-mails, it did nothing to recover them, or discover how and why they went missing in the first place," Anne Weismann, CREW's chief counsel, said in a statement. "The missing e-mails are important historical records that belong not to the Bush administration, but to the American people."