The White House’s top tech leader acknowledged yesterday that three months of data at the heart of an ongoing lawsuit are missing from its backup tapes.
During her third court deposition on the matter, Theresa Payton, CIO in the Executive Office of the President (EOP), said that a set of backups tapes that should have contained six months of data from its e-mail systems actually only contained about half that.
According to Payton, tapes that ought to have included backup data from between March 1, 2003 through Sept. 20, 2003 actually only contained data saved after May 23.
It’s unclear whether some tapes were recycled or have been misplaced, or whether the data became lost in other ways, including improperly configured backups.
It’s also unclear exactly what data is now missing. Payton said tapes “should contain” e-mails from the entire six-month time period, but that deciphering the specific content — and figuring out what precisely has been lost — would pose an “extraordinary” burden on her department.
It’s the second time White House officials have indicated that data could have been erased as part of a tape recycling process that was halted as of Oct. 1, 2003.
In testimony earlier this year before a congressional committee, White House technical staff said millions of e-mails from the past eight years could potentially have been erased through the process.
Payton’s filing marks the latest revelation in a protracted court battle between the White House and two advocacy groups over claims the Bush Administration has not properly archived e-mails and preserved digital documents as required by federal law.
The lawsuits, filed by the National Security Archive, a non-governmental research institute and records repository, and liberal advocacy group Citizens for Responsibility and Ethics in Washington (CREW), sought to recover e-mails from between March 2003 and October 2005.
Calls to the Department of Justice (DOJ), which is representing the EOP, were not returned by press time. A spokesperson has stated previously that the White House would not comment on ongoing litigation.
Not surprisingly, the groups suing the EOP over the missing data were not amused by the latest turn of events.
“It’s clearly an admission of gaps with backup tapes, and that there is no guarantee that there are backup tapes for all of EOP during the period of concern,” Meredith Fuchs, counsel for the National Security Archive, told InternetNews.com.
The Archive first joined CREW in filing separate lawsuits against the White House in September, in a bid to recover federal documents from March 2003 to October 2005. Since then, the EOP has steadily fought to dismiss the legal action by the Archive, indicating missing e-mails may be recoverable.
But with officials now suggesting the possibility of missing data, much remains ambiguous.
“This is not assurance that the data has been saved,” Fuchs said. “It’s remarkable that they don’t seem to have to explain what happened and are being so vague.”
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The effort by the plaintiffs, who have the opportunity to respond to this week’s filing, faces still further obstacles.
In late April Judge John Facciola ordered the EOP to determine the cost for using forensic technology to recover potentially deleted e-mail.
Facciola also ordered the EOP to provide data on how many current EOP employees were present during the stipulated time frame, and how many hard drives in use today were used in that period.
The court also recommended a search of current and older workstations and Microsoft Outlook .PST files for e-mails linked to individuals employed during the 2003 time frame. It also suggested that EOP employees relinquish backup media that contain e-mails sent or received during the time frame.
But in filings before the U.S. District Court for Washington, D.C. late yesterday, DOJ lawyers fired back at the court’s recommendations.
In its filing, the DOJ reiterated the Administration’s claim that retrieving lost e-mails — by searching workstations and Microsoft Exchange files for messages tied to individuals employed during the March 2003-October 2005 time frame — would prove unworkable.
DOJ officials said that following its recommendations would impose “significant burdens” on the EOP and hinder “effective service.”
Additionally, Payton said in her deposition yesterday that the EOP’s Office of Administration (OA) “has not historically tracked hard drive information regarding assignment to individuals” — making any effort to recover employees’ old data even more doubtful.
Payton stated in her declaration, which came in response to the court order, that the OA was successful in identifying 545 workstations that that may have been in use during the time frame.
However, she added that the OA can’t determine if current hard drives were in use during that time, and that making such a determination would be “extremely costly” and place both time and cost burdens on OA staff.
The EOP cited similar concerns earlier, in response to a court order from March that instructed the EOP to stipulate why it could not conduct forensic copying technologies to preserve e-mail files during the litigation process.
The White House responded that such an effort would prove too costly and labor-intensive.