White House E-mail Docs to Fall Under Info Act?

White House e-mail debacle

The advocacy group Citizens for Responsibility and Ethics (CREW) won a small victory today, as the U.S. District Court held out the possibility of an appeal overturning its decision on access to documents relating to missing White House e-mails.

The latest ruling is not a reversal but an indication that the CREW appeal has merit, Anne Weismann, CREW chief counsel, told InternetNews.com.
CREW had filed for access under the Freedom of Information (FOI) act.

District Judge Colleen Kollar-Kotelly, of the United States District Court for the District of Columbia, ruled Tuesday that the White House Office of Administration (OA) must preserve any documents tied to its internal e-mail investigation in the event CREW wins an appeal filed to gain access to the material.

Last month Kollar-Kotelly had ruled the OA is not a federal agency and its documents were not accessible under the FOI rules.

The court stay is the latest legal volley between CREW, a left-wing public advocacy group, and the OA over documents related to White House e-mail procedures and missing messages.

CREW called the ruling “an important step” in holding the White House accountable regarding e-mail records.

“Yes it’s unusual for a judge to put a stay in place after they have ruled on an action, but the court recognizes that if we win our appeal and these records aren’t preserved there will be harm,” Weismann explained.

CREW believes the e-mail investigation documents, which come under the Presidential Records Act, are in danger of being transferred to archives next January following the swearing in of a new White House president. That would make future access extremely difficult, Weismann said.

CREW filed its FOI request to the OA in April 2007 to gain documents related to an OA analysis about missing White House e-mails, according to Weismann. While the OA provided some documents it also withheld thousands of pages, according to CREW, yet the groups worked out a timetable for document access going into the 2007 summer timeframe.

But OA then reneged, according to CREW, an action that prompted the advocacy group to ask for court assistance.

The OA responded to the FOI court action with a brief stipulating that it did not come under FOI guidelines and was not required to provide any further documents. That stipulation was upheld by Kollar-Kotelly last month.

This week’s court decision was separate from a lawsuit filed by CREW and the National Security Archive last year against the Executive Office of the President (EOP) to preserve e-mail and determine what e-mails are missing from White House servers. It could impact the joint e-mail preservation effort, however.

CREW and the Archive are awaiting a court decision on several issues ranging from extending an e-mail preservation order to mandating that the EOP confiscate mobile storage devices that could house e-mail from the timeframe of March 2003 to October 2005. There is no specific timeframe for the court’s decision.

The Archive, an independent nongovernmental research institute based at George Washington University, is a repository of government records and does not receive U.S. government funding.

The Department of Justice (DOJ) has vigorously opposed CREW and Archive efforts, stating such actions aren’t necessary and that recommendations to boost e-mail protection would prove onerous.

The EOP has previously admitted that three months of data at the heart of the lawsuit are missing from its backup tapes.

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