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The Washington Post

White House May Keep Documents in E-Mail Flap Private, Judge Rules

Del Quentin Wilber

The White House does not have to make public internal documents examining the potential disappearance of e-mails sent during some of the Bush administration's biggest controversies, a U.S. district judge ruled yesterday.

In a 39-page opinion, Colleen Kollar-Kotelly said that the White House's Office of Administration is not subject to the Freedom of Information Act (FOIA), even though its top officials had complied with the public records law for more than two decades.

The Office of Administration, which performs a variety of services for the Executive Office of the President, announced it would no longer comply with the FOIA last August, three months after an independent watchdog group filed a lawsuit seeking to discover what happened to the e-mails, which may have vanished from White House computer archives.

Acknowledging that the issue "is a close one, and is not easily resolved," Kollar-Kotelly wrote that the Office of Administration "lacks the type of substantial independent authority" necessary for it to fall under the FOIA. She added that the office performs mostly administrative functions, which also exempts it, and that past compliance with the FOIA was "insufficient by itself" to subject it to the law's requirements.

Kollar-Kotelly dismissed the lawsuit, which was filed by Citizens for Responsibility and Ethics in Washington (CREW).

The White House has been criticized by congressional Democrats, historians and watchdog groups over alleged sloppy retention of e-mails between 2001 and 2005, a period that included the Iraq war.

White House spokesman Tony Fratto said the White House "welcomed" the decision. CREW's executive director, Melanie Sloan, said in a statement that "we are disappointed in the ruling and believe the judge reached the wrong legal conclusion."

Anne Weismann, chief counsel for CREW, said the group will appeal the decision. She said she is worried that without prompt judicial action, the records will not become public "for many years" after President Bush leaves office.

In another lawsuit, CREW and another group, the National Security Archive, have asked a federal judge to order the Bush administration to take steps to preserve and retain the e-mails in question.

Staff writers Michael Abramowitz and William Branigin and staff researcher Madonna Lebling contributed to this report.

© 2008 The Washington Post

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