White House dismantles the Automated Records Management System (ARMS) put in place by Clinton Administration to archive e-mails.

New archiving system, Electronic Communications Records Management System (ECRMS), is proposed as transition to Microsoft Exchange begins. In the interim, EOP institutes process to manually label and archive each component’s Exchange .pst (Personal Storage Table) files every day—which former CIO Carlos Solari called a “temporary” and “short-term situation” for e-mail preservation.

Start date of period of missing e-mails.

A 2005 OCIO staff report (“2005 Report”) documented e-mail archiving irregularities within all EOP components.  The study was performed using two Microsoft Virtual Basic tools, “Findit” and “CMDFI”, and identified a total of 473 days of an approximate 1,000 day period in which one or more EOP components reported zero e-mail. The report also identified 229 days within the same period where one or more components recorded inexplicably low e-mail tallies.

Last day listed in 2005 Report with either zero e-mail (“Red Days"), or suspiciously low e-mail tallies (“Yellow Days”) within the day’s e-mail archive.

ECRMS ready to go live, pending approval of OA director and CIO Payton.

Payton decides to not implement ECRMS, citing concern over the predicted 18-month “ingestion” of backlogged messages (although the ingestion would have been complete by the end of Pres. Bush’s second term,) and the inability for staff to distinguish records subject to the PRA and FRA from political or personal e-mail (despite the fact that OA Counsel had previously approved this aspect of the ECRMS system.)

White House Counsel meets with “key members of NARA’s senior staff” to brief them on e-mail situation. NARA makes its first of several requests for a copy of the 2005 Report detailing missing/low e-mail days, and urges commencement of restoration program.

A week after this meeting, Allen Weinstein, Archivist of United States, sends a letter to White House Counsel Fred Fielding, urging the White House to commence restoration of lost e-mail.

OA receives an opinion from the Office of Legal Counsel (OLC) which “provided legal advice to the White House Counsel’s Office regarding OA’s status under FOIA.” On the same day, OA files a motion in CREW’s FOIA lawsuit arguing that the case should be dismissed because it is not an “agency” subject to FOIA. This argument contradicts OA’s history of responding to FOIA requests, filing of annual FOIA reports, and drafting of a FOIA improvement plan. Soon after, OA takes down the FOIA page on its web site.

OA later claims in litigation with CREW that the OLC memo was “not the final decision” and therefore need not be disclosed. The memo remains secret.

The National Security Archive sues White House defendants and NARA, seeking the recovery and preservation of more than 5 million e-mails under the Federal Records Act and the Administrative Procedure Act.

In an internal NARA memo to Archivist Allen Weinstein, NARA General Counsel Gary Stern states that “we still know virtually nothing about the status of the alleged missing White House emails” and “it is vital that any needed backup restoration project begin as soon as possible, in order that it be completed before the end of the Administration.”

The National Security Archive files a motion seeking expedited discovery against the Executive Office of the President to find out more about missing e-mails.

On November 9, 2007, defendants file their opposition to the Archive’s discovery motion.

Telephone briefing with Oversight Committee Staff and Theresa Payton and Emmett Flood.

Payton says CIO is using newer software tool to analyze e-mails/perform search and has recovered about 100 .pst files with names that do not correspond with their contents.

Telephone briefing with Oversight Committee Staff and Theresa Payton and Emmett Flood reports that 23 million previously uncounted e-mails were discovered.

Staff has “found” e-mail for at least some of the days that 2005 Report indicates had no e-mails preserved. Payton could not specifically quantify how many were found for these days. Some e-mails found for “all of the missing days for the White House Office, the Office of Policy Development, and the Office of Management and Budget. Similarly, some e-mails had been found for 5 of 16 missing days for the Office of the Vice President.” Findings described as “preliminary” and Payton cautions that analysis will not be complete until “sometime in March.”

The Archive files a brief in opposition to government objections to the Report and Recommendation, arguing that further action by the court is necessary to preserve e-mails that may remain on backup tapes and other media. CREW also files its opposition to defendants’ objections.

Defendants file a response to the Archive’s limited objection to the Magistrate Judge’s recommendation denying the Archive’s require for depositions.

Government files a reply brief in support of its request for reconsideration of the Magistrate Judge’s report, reiterating its argument that the November 12 preservation order is sufficient to ensure that the court will be able to grant relief, because OA has preserved approximately 60,000 disaster recovery back-up tapes that should contain any missing White House e-mails.

In a separate case brought by CREW under FOIA, seeking records from the Office of Administration about missing White House e-mails, U.S. District Court Judge Colleen Kollar-Kotelly rules that the Office of Administration “is not an agency subject to the FOIA” and grants the government’s motion to dismiss CREW’s case.

On June 17, the government filed a notice to inform the court about the decision in CREW v. Office of Administration.  The Archive filed its response about the decision on June 30. 

Magistrate Judge Facciola issues his Second Report and Recommendation, denying EOP’s motion to reconsider and upholding previous recommendations that the court order EOP to search and preserve e-mails from individual workstations and portable media but declining to order forensic copying of all relevant workstations.      

Judge Kennedy denies EOP’s motion to dismiss, finding that the case may go forward under the Federal Records Act and that the Archive and CREW have standing to sue.

CREW filed a renewed motion for expedited discovery, seeking discovery about the status of the White House e-mails as the transition approached.  The defendants opposed the motion and CREW replied.

The Archive files a motion to compel production of the administrative record, claiming that “Defendants’ attempt to evade their disclosure obligations comes on the eve of the presidential transition – where documents related to the administrative record as well as the emails at issue in this lawsuit may be transferred and/or otherwise made inaccessible.”

Judge Kennedy orders defendants EOP to “(1) search the workstations . . .  and to collect and preserve all e-mails sent or received between March 2003 and October 2005 and (2) issue a preservation notice to its employees directing them to surrender any media in their possession . . . that may contain e-mails sent or received between March 2003 and October 2005, and for EOP to collect and preserve all such media.”  The order granted the Archive’s March 11, 2008, Emergency Motion to Extent TRO/Preservation Order and adopted the April 24, 2008, and July 29, 2008, Reports and Recommendations of Magistrate Judge Facciola.

Magistrate Judge Facciola holds an emergency status conference.  The conference was scheduled in response to CREW’s request for a hearing to clarify the status of documents and e-mails relevant to the lawsuit in light of the upcoming transition and records transfer, but the EOP objected to the request, claiming it had already provided adequate assurances that the White House would follow the court’s orders during the transition.

January 15, 2009

In advance of the presidential transition on January 20, Magistrate Judge Facciola issues an order and opinion directing the White House to search all EOP workstations and portable media for missing e-mail after government lawyers at a hearing the previous day represented that they would only search EOP components that create federal records and not presidential records components. The order also directs EOP to provide to the Archivist of the United States and the court a full inventory of all backup tapes and portable media containing White House e-mail and to preserve and provide to the Archivist a full administrative record of the case.

January 21, 2009

On the first full day of the Obama administration, EOP files a motion to dismiss conceding that many days of e-mails written had been deleted from the EOP servers, that those deleted e-mails had to be restored from backup tapes, and that millions of e-mails had been mislabeled and miscategorized in the White House system. Continuing the legal strategy of the Bush administration, the motion argues that because the e-mails have been restored the issue is now moot and the judge should dismiss the case.

January 22, 2009

EOP files its second notice of compliance, providing the court with an inventory of 70,000 disaster recovery tapes and informing the court that it has transferred to NARA a 6 terabyte database containing a list of every file contained on 26,000 back up tapes that were copied as part of e-mail recovery efforts.

January 26, 2009

Judge Kennedy adopts Magistrate Judge Facciola’s January 15 order as a report and recommendation, making it binding on the government defendants.

The Archive files its response to the government’s motion to dismiss, arguing that the EOP defendants have not provided evidence to show that their restoration efforts were sufficient or that an adequate e-mail archiving system is in place.

Judge Kennedy orders the case be stayed after the plaintiffs and government defendants agree to pursue settlement negotiations to discuss whether the matter can be resolved outside of litigation.