Where Have All the E-Mails Gone?

You’ve Got Mail—On Friday, August 31, the FOIA Handbook page of the White House website included the following information: “This handbook is intended to assist you in making a Freedom of Information Act (FOIA) request to the Office of Administration (OA). . . .” The page directed FOIA applicants to a compliance officer and listed other agencies subject to FOIA—a post-Watergate law that guarantees individual citizens access to public records.

By Monday, September 3, the page had changed. Type www.whitehouse.gov/government/eop-foia.html into a web browser today, and you will find this text in a box with an asterisk: “The Office of Administration, whose sole function is to advise and assist the President, and which has no substantial independent authority, is not subject to FOIA and related authorities.”

Someone decided that, for first time since it was created thirty years ago, the Office of Administration is no longer “an agency.” More important, it is no longer an agency required to comply with the Freedom of Information Act—although as recently as fiscal year 2006 the OA responded to sixty-seven FOIA requests. Why the sudden change?

One of the OA’s primary responsibility is the management of all e-mails and other electronic messages within the Executive Office of the President. The White House webmaster’s quick fix is a reaction to a lawsuit filed by Citizens for Ethics and Responsibility in Washington (CREW), an ethics watchdog group and public-interest law firm.

Some White House e-mails were reported missing when special counsel Patrick Fitzgerald requested information for the investigation that led to the conviction of Dick Cheney’s Chief of Staff, Scooter Libby. Fitzgerald was reportedly looking for Senior Advisor Karl Rove’s electronic fingerprints on the decision to out CIA agent Valerie Plame.

Senator Patrick Leahy (D-VT) later requested access to White House e-mails that might have provided some clues about Rove’s involvement in a second scandal, the firing of U.S. Attorneys, which resulted in the resignation of Attorney General Alberto Gonzales.

CREW initially asked the court to order the White House to preserve all backup media that might include duplicate copies of the missing e-mails. Yet the government strenuously opposed all of CREW’s requests. In a hearing before a federal magistrate making recommendations to U.S. District Judge Henry Kennedy, Justice Department Attorney Helen Hong disagreed that a court order would best protect copies of the missing e-mails. Hong offered instead a declaration, signed under penalty of perjury, that the White House wouldn’t destroy them.

The DOJ lawyer seemed bewildered when the magistrate judge read from an earlier court decision declaring certain electronic records created by the Executive Offices of the president subject to the Federal Records Act (FRA).

“The Office of Administration,” Hong said, “is not one of those offices that falls within definition of an agency within the meaning of the FRA.”

Hong didn’t help her case when she was unable to answer the magistrate’s questions regarding by what authority the Office of Administration was created. CREW attorney Anne Wiesman explained that the agency was created by an executive order signed by President Carter in 1977. Since then, the OA has complied with FOIA requests. Included in Crew’s exhibits were Federal Register pages codifying the FOIA process at the Office of Administration.

Why would the White House put up such a fight over an agreement to preserve documents? The missing e-mails could answer questions about Rove’s role in the sacking of U.S. Attorneys and the prosecution of former Alabama governor Don Siegelman (see the Washington SpectatorNov. 15).

After rejecting Hong’s offer of a handshake declaration, CREW prevailed when Judge Kennedy issued his temporary restraining order. The pre-Thanksgiving ruling moved through the news cycle almost unnoticed.
“We’re not asking for their e-mail,” Wiseman told the Spectator. “We’re saying the federal laws require you to preserve records.”

Asked if the records could be used in criminal investigations, Wiseman was straightforward. “My understanding is that when they found out the e-mails were missing, it was because of a request from Fitzgerald,” he said. “Those missing e-mails could be probative of a number of things.”

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