Judge Backs White House on Missing Emails

16 Jun 2008 // A federal judge today dismissed a watchdog group's lawsuit seeking records on missing White House e-mails, ruling that the agency holding the records -- the White House's Office of Administration -- is not subject to the Freedom of Information Act.

In a 39-page opinion, U.S. District Judge Colleen Kollar-Kotelly said she reached that conclusion even though the office had previously considered itself an agency subject to FOIA and had provided records requested under the law from 1980 until August 2007. She sided with the office's argument that it does not meet a key requirement for a federal agency to be subject to FOIA, writing that the Office of Administration (OA) does not exercise "the type of substantial independent authority that the D.C. Circuit has found sufficient to make an EOP [Executive Office of the President] component an agency under the FOIA."

The group that filed the lawsuit, Citizens for Responsibility and Ethics in Washington (CREW), said it is appealing the decision.

"We are disappointed in the ruling and believe the judge reached the wrong legal conclusion," CREW executive director Melanie Sloan said in a statement. "The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails. The fact is, until CREW asked for documents pertaining to this problem, the Office of Administration routinely processed FOIA requests. 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."

In her ruling, Kollar-Kotelly said she found that the Office of Administration's functions are "strictly administrative" and that it has no authority over other entities or persons in the Executive Branch. She likened the agency to the Executive Residence staff, which maintains the White House and helps the president carry out ceremonial duties. She described the office as "exclusively dedicated to assisting the president in providing uniform and efficient administration services to the various components of the EOP."

The court's conclusion that the Office of Administration "is not an agency subject to the FOIA obviates OA's obligation to comply with CREW's FOIA request," Kollar-Kotelly wrote.

However, the decision does not end the quest of watchdog groups for a large volume of e-mail that they say has disappeared under questionable circumstances. The White House acknowledged last year that millions of e-mails written by presidential aides were missing, but it has since reduced its estimate of the missing messages and said it is trying to recover them.

CREW and another Washington-based private group, the National Security Archive, have filed a separate lawsuit against the Executive Office of the President to obtain the e-mails. In addition, the House Committee on Oversight and Government Reform is investigating the disappearance of the electronic messages.

CREW sued the Office of Administration in May 2007 for failing to comply with FOIA requests for records on the missing e-mails and on the office's assessment of the scope of the problem.

"After initially agreeing to provide records, OA changed course and claimed it was not an agency and, therefore, had no obligation to comply with the FOIA," CREW said in a statement. It said the office "made this claim despite the fact that even the White House's own Web site described OA as an agency and included regulations for processing FOIA requests."

CREW noted that it filed its original FOIA request in April 2007, four months before the Office of Administration announced it had changed its position and would no longer comply with FOIA requests. Nevertheless, the group said, "the court found that OA had no duty to respond to CREW's FOIA request because OA was never an agency in the first place."

CREW has previously charged that White House officials "may have deliberately lost or tampered with e-mail records to hide illegal conduct."