White House E-mail, a National Security Archive documents reader

Chronology of events in the White House e-mail lawsuits

Previous Postings

March 18, 2008
Court orders White House to show cause why it should not create forensic copies of all electronic media

February 26, 2008
White House Ignored Repeated Warnings That E-mails Were at Risk

January 16, 2008
White House Admits No Back-Up Tapes for E-mail Before October 2003

January 8, 2008
White House Must Answer Questions About Missing White House E-mails, Magistrate Judge Rules

December 14, 2007
Archive Argues Against Government Attempt to Dismiss White House E-mail Lawsuit

November 13, 2007
Judge Orders Executive Office of the President to Preserve E-mail Back-Up Tape

October 29, 2007
Archive seeks to discover true extent of missing e-mails at White House

September 5, 2007
Archive Sues to Recover 5 Million Missing White House E-mails

For Immediate Release:
April 17, 2008

Ruling on Preservation of White House E-Mails Awaited;
New Law Proposed to Address Destruction of Electronic Records

For more information contact:
Meredith Fuchs - 202/994-7000

Washington DC, April 17, 2008 - Today, the White House sought clarification from the court concerning its ability to restore missing records from backup tapes that are currently being preserved. The White House inquiry comes as the National Security Archive continues to await a ruling by the United States District Court for the District of Columbia on its pending motion to extend an e-mail preservation order against the Executive Office of the President (EOP) and to depose relevant witnesses about the state of the White House’s e-mail archiving system. A new bill to establish procedures to assure the preservation of electronic federal and presidential records was introduced this week by Rep. Henry A. Waxman (D-CA), Rep. Wm. Lacy Clay (D-MO), and Rep. Paul W. Hodes (D-NH) (H.R. 5811), but that bill would have no effect on the e-mails that are the subject of the pending lawsuit. A new chronology of events in the White House e-mail lawsuits is available here.

The need for broader preservation of electronically stored e-mails came to light after the White House made numerous contradictory statements about whether e-mails are missing or were not properly preserved. These statements ranged from a letter written in the context of the Scooter Libby-Valerie Plame matter by Special Prosecutor Patrick Fitzgerald claiming e-mails from the Office of the Vice President had not been archived, to congressional briefings by White House lawyers about the missing e-mails, to a declaration in the National Security Archive’s lawsuit casting doubt on the likelihood that e-mails are missing, to outright denials by White House spokespeople.

The White House’s inconsistent statements led the House Oversight and Government Reform Committee to hold a February 26 hearing on the state and preservation of White House e-mails. At the hearing, it was disclosed that the White House Office of Administration has made repeated representations that it will soon know whether e-mails are in fact missing, but OA has continued to extend the timeframe for that determination. Currently, the White House estimates that it will not complete the first phase of its review until summer 2008 and admits that any recovery efforts will not be completed until after the end of the Bush Administration. It was also disclosed at the hearing that previous back-up tape restoration efforts related to the prosecution of White House aide Scooter Libby were not initially successful because missing e-mails could not be found in the back-up files where they should have been stored.

On the heels of the House hearing, the National Security Archive moved for a broader preservation order to ensure preservation of e-mails created during the period when the White House recycled (or overwrote) its backup tapes. The Archive also argued that it should be granted leave to depose White House Chief Information Officer Theresa Payton, to clarify contradictions among the defendants’ statements and to determine whether Ms. Payton or another witness has personal knowledge about EOP’s preservation of e-mails. The White House opposed the Archive’s motion, but Magistrate Judge Facciola ordered it to show cause why it should not be required to forensically copy all its electronic storage media. 

A declaration filed by Chief Information Officer Payton in response to the Magistrate’s order made three central points.  First, she claimed that it is unlikely that any computers used between 2003 and 2005 are still in use today because the White House systematically “refreshes” one-third of its computers each year. Despite this formal computer replacement program, Ms. Payton also claimed that the White House does not know which computers were replaced at what time. Second, she asserted that the White House ships the hard drives from computers that are replaced to a Department of Defense office for destruction, but she did not indicate whether any inquiry had been made as to whether some retired hard drives may still exist or why the White House did not stop shredding hard drives during the several years after it became aware that e-mails were missing. The White House apparently continued to destroy hard drives even after the National Archives and Records Administration repeatedly reminded officials about the legal implications of destruction of e-mail and after various criminal and congressional investigations required production of White House e-mail and two lawsuits were filed about the White House’s e-mail preservation problems. Third, the CIO claimed that the White House does not have any formal program for distribution, tracking, or maintenance of records stored on portable media such as external drives, CDs, and flash drives, and so it cannot determine whether there are e-mails on such media.

The Archive responded, arguing that EOP’s response failed to provide the court with facts it requested about the costs and burden of forensic copying. Supported by a declaration from an expert in forensic technology recovery, the Archive argued that the burden of making forensic copies of EOP workstations would be nominal (between $50 and $250 per workstation) compared with the likelihood that the data could be obliterated. Moreover, EOP cannot be permitted to use its destruction of hardware as an excuse for not complying with the preservation order, and it should be required to also preserve external media devices that may contain e-mail data and to query workstations to determine the time period of their use.
 
It was recently revealed in the course of FOIA litigation about missing White House e-mails that the Office of Administration, which previously was considered an agency under the Federal Records Act (FRA) and the Freedom of Information Act (FOIA), decided to change its status to an office whose records are subject only to the Presidential Records Act (PRA). That revelation came in a FOIA lawsuit brought by Citizens for Responsibility and Ethics in Washington seeking records about the missing e-mails. The Office of Administration’s status change was contrary to longstanding government determinations that it was an agency subject to the FRA and the FOIA.

The National Security Archive is currently awaiting rulings on its motion to extend the preservation order and conduct depositions, its motion to expedite commencement of discovery, and the White House’s motion to dismiss.

The White House and E-mail

The management of electronic mail has proven a challenge for three administrations prior to that of President George W. Bush. E-mails were used in the Reagan White House by the National Security Council (“NSC”). In an important sub-plot to the larger drama surrounding Col. Oliver North’s destruction of National Security Council files, a Federal court ruled that e-mail correspondence between North and National Security Advisor John Poindexter were admissible as evidence to support charges that the men were involved in a scheme to funnel arms to Iran, to secure release of hostages held there and later to divert profits to the anti-Sandinista group fighting in Nicaragua. The messages had been deleted from the computers but were recovered from back up tapes.

Then on the last day of the Reagan presidency, National Security Archive staff discovered that outgoing Reagan administration officials planned to destroy all electronic communication records and back-up tapes. Lawyers for the Archive, the Center for National Security Studies, and others filed FOIA requests and a lawsuit to halt the plan, only 30 hours before the scheduled destruction. In a decision delivered on the evening of the 1989 inauguration, a Federal judge ruled in favor of the plaintiffs and granted a Temporary Restraining Order halting the destruction of e-mails. Subsequent litigation to compel the Bush administration to comply with records laws culminated in early 1993 with the D.C. Circuit Court of Appeals deciding in Armstrong v. Executive Office of the President that past NSC and EOP electronic record keeping guidelines failed to meet FRA requirements, and their current electronic record keeping guidelines were insufficient, a decision that prompted review and improvement of EOP e-mail archiving policies. 

Responding to Armstrong v. Executive Office of the President, Clinton administration officials enacted more stringent e-mail policies. Despite these efforts, a pair of server malfunctions early on in the Clinton presidency allowed millions of e-mails to circumvent the EOP automatic archiving program. Discovered as the White House began to respond to a flurry of subpoenas regarding Whitewater, the Monica Lewinsky scandal, and questions surrounding Vice President Al Gore’s political fund-raising activities, these missing files gave rise to allegations of conspiracy and prompted several days of House Committee on Oversight and Government Regulations (“Oversight Committee”) hearings in the spring on 2000. Ultimately, the Clinton White House signed a Memorandum of Understanding with the National Archives and Record Administration, turning over custody of all e-mails, back-up tapes and electronic files. More than a million files were eventually restored, but only after an effort that lasted more than a year, extended into the incoming Bush Presidency, and cost in excess of $13 million.

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.

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.”