National Security Archive: Court Sets Deadline for White House Answers on Missing E-mail
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FOR IMMEDIATE RELEASE
April 24, 2008
3:50 PM
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CONTACT: National Security Archive
Meredith Fuchs - 202/994-7000
John B. Williams/Sheila L. Shadmand [Jones Day] - 202/879-3939
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Court Sets Deadline for White House Answers on Missing E-mail
Magistrate Judge Cites "Lack of Precision" in White House Statements
Order Could Force White House to Save Individual Workstation Files;
Action Comes in Response to Archive Motion
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WASHINGTON, DC - April 24 - Responding to the National
Security Archive's motion in the pending White House e-mail lawsuit,
Magistrate Judge John M. Facciola of the U.S. District Court today
ordered the White House to provide "precise information" about the
users of the e-mail system from 2003 to 2005 and how many of their
hard drives still survive today.
Citing the "lack of precision" in White House statements and its
changing story about which backup tapes have been preserved,
Magistrate Judge Facciola also ordered the White House to "resolve any
ambiguities ... once and for all" and identify the specific dates
between March 2003 and October 2003 for which no backup tape exists.
The magistrate judge also recommended that District Judge Henry H.
Kennedy issue a series of orders that would compel the White House to
search the individual workstations of White House staff, preserve the
personal folders (.PST files in the Microsoft environment) where
e-mail may have been stored, and secure any portable or external media
that may contain e-mail from March 2003 to October 2005. Referring to
the White House position that it has no formal program for
distributing "hard or external drives, CDs, DVDs, jump, zip, hard, or
floppy disks," Magistrate Judge Facciola commented "[o]ne would hope
that the components have filled the void left by [Office of Chief
Information Officer] by implementing policies and procedures to "track
and manage" the removal and/or transfer of [Executive Office of the
President] data..."
"It is remarkable that the EOP, absent this Court's order, has not
taken the most elementary steps to preserve very basic sources of the
missing e-mail -- steps that, even as the Court notes, should in this
day and age be conducted as a matter of course in any litigation,"
commented Sheila Shadmand of Jones Day, counsel for the Archive.
"The Court is reacting to the inconsistencies in the White House
statements: e-mail are lost one day, the next they are not; e-mails
are recoverable, then they are not; backup media is saved, then it is
not," added Meredith Fuchs, the Archive's General Counsel. "What
worries us is that time is passing – there are only 8 ½ more months
until this administration leaves office and if nothing is done soon
not only could the e-mails disappear for good, but the federal records
that are commingled with the presidential records could get swept away
and become inaccessible for the next 12 years."
"This ruling is a major victory for accountability at the White
House," commented Tom Blanton, director of the Archive. "We have seen
delay after delay, and constantly changing stories, none of which come
up to the standards that are required by law."
The ruling comes in litigation brought by the National Security
Archive against the Executive Office of the President and the National
Archives and Records Administration to preserve and restore missing
e-mail federal records. A chronology of the litigation is available
here. The suit was filed on September 5, 2007; a subsequent virtually
identical lawsuit filed by Citizens for Responsibility and Ethics in
Washington has been consolidated with the Archive's lawsuit.
Visit the Web site of the National Security Archive for more
information about today's posting.
http://www.nsarchive.org
THE NATIONAL SECURITY ARCHIVE is an independent non-governmental
research institute and library located at The George Washington
University in Washington, D.C. The Archive collects and publishes
declassified documents acquired through the Freedom of Information Act
(FOIA). A tax-exempt public charity, the Archive receives no U.S.
government funding; its budget is supported by publication royalties
and donations from foundations and individuals.
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