Federal Court Says White House Doesn’t Have to Release Records about Missing E-mails: Via Threat Level.

A federal appellate court dealt a blow to transparency on Tuesday when it ruled that the White House does not have to release information about missing Bush administration e-mails that was requested under the Freedom of Information Act.

The U.S. Court of Appeals for the District of Columbia said that the White House Office of Administration is not an agency and therefore is not subject to records requests under the federal FOIA, despite the fact that the office had responded to records requests for three decades until the Bush administration halted the practice in 2007.

In 2007, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archives filed a FOIA request to obtain information after the Executive Office of the President (EOP) revealed that it had lost about 5 millions e-mails from its servers between January 2003 and July 2005 because the e-mails had not been archived properly per the Presidential Records Act. Among other things, CREW sought records about the EOP’s e-mail management system, about retained and missing e-mails and about any audit reports that might have revealed potential problems with the e-mail system.

The OA initially agreed to provide the records but asked CREW to limit the scope of the request or revise the timetable for responding. CREW replied that its request wasn’t broad and the time limit was reasonable. When the deadline passed and OA had not turned over the data or indicated when it might do so, CREW sued. The two parties agreed on a plan for handing over the records in June 2007, but weeks later the OA changed its mind and said it didn’t have to respond to FOIA requests. It took this stand after the Justice Department Office of Legal Counsel sent a memo to the White House saying the Office of Administration was not subject to FOIA.

This occurred right around the time that White House e-mails were becoming a hot topic in relation to the Justice Department’s firing of U.S. attorneys around the country. In May 2007, Senator Patrick Leahy (D — Vermont) had subpoened missing e-mails from the attorney general for Congress’s probe of the U.S. attorney scandal. The missing emails were also potentially crucial to the investigation into the Valerie Plame-CIA leak scandal.

In the end, the OA did provide some of the requested records under FOIA, but withheld more than 3000 pages of documents.

This week, the district court concluded that the OA has the right to withhold data because it “performs only operational and administrative tasks in support of the President and his staff” and therefore lacks the substantial independent authority necessary to be considered an agency covered by FOIA.

CREW, along with 36 other groups, have sent a letter to the White House urging President Obama to stand by his commitment to transparency and direct the OA to comply with this and other FOIA requests.

“From its inception in 1977 until August 2007, OA functioned consistently as an agency subject to the FOIA, adopting comprehensive FOIA regulations and processing hundreds of FOIA requests,” the letter states. ” In August 2007, in the midst of litigating a FOIA request brought by Citizens for Responsibility and Ethics in Washington (“CREW”) for records related to OA’s discovery that millions of e-mail messages were missing from White House servers, the Bush administration abruptly changed course and declared OA is not an agency and therefore need not comply with CREW’s or any other information requests under the FOIA.”

Anne Weismann, CREW’s chief counsel, said in a press release, “For eight long years the Bush administration used legal tactics such as changing the status of OA, to keep the public in the dark about what transpired at the White House. Starting with his own offices, President Obama now has the perfect opportunity to make good on his promise of transparency. We hope he decides to keep his word to the American people.”

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