Two small victories for researchers.

[Magda Hassan]

Number one:

Court Rejects White House on Missing E-mails

Washington D.C., [B]November 10, 2008[/B] - A court ruled today that the National Security Archive may proceed with its effort to force the White House to recover millions of Bush Administration Executive Office of the President (EOP) e-mail records before the presidential transition. Rejecting the government’s motion to dismiss the Archive’s lawsuit, the Court ruled that the Federal Records Act permits a private plaintiff to bring suit to require the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records.
“This ruling gives the public a clear voice in demanding preservation of our nation's history, even when that history is created at the White House,” explained Sheila Shadmand, an attorney at Jones Day who is representing the Archive. “We can now give positive action to that voice and protect these records before they get carted off or destroyed as the current administration packs its bags to leave. In that sense, the ruling itself is as historical as the records it will protect.”
“This is a major victory for the public interest in accountability at the White House,” added Archive General Counsel Meredith Fuchs. “Through this lawsuit we have preserved over 65,000 computer backup tapes. This decision means those tapes will survive the end of the Bush Administration so that Congress, the courts, and eventually the public will be able to learn about the decision-making that took place over the last 8 years.”
The National Security Archive originally filed its case against the Executive Office of the President and the National Archives and Records Administration to preserve and restore missing e-mail federal records in September 5, 2007. A subsequent lawsuit filed by Citizens for Responsibility and Ethics in Washington has been consolidated with the Archive's lawsuit. A chronology of the litigation is available here.


Number 2.


Court Rebukes CIA on Freedom of Information, Recognizes Journalists, Not CIA, Determine What Is News
CIA Ordered to Treat National Security Archive as Representative of the press.


Washington D.C., November 5, 2008 - In a striking rebuke to the Central Intelligence Agency (CIA), Judge Gladys Kessler of the United States District Court for the District of Columbia yesterday rejected the CIA’s view that it—and not journalists—has the right to determine which Freedom of Information Act (FOIA) requests are newsworthy.
Reconsidering its earlier decision deferring to the CIA’s written assurances that the agency would cease illegally denying the National Security Archive’s news media status, the court ordered the CIA to treat the Archive as a representative of the news media for all of its pending and future non-commercial requests. Finding that the CIA “has twice made highly misleading representations to the Archive, as well as to [the] Court,” the court explained that the CIA’s position “is truly hard to take seriously” and enjoined the CIA from illegally denying the Archive’s news media status.
“The CIA's long-running failure to treat the Archive’s FOIA requests in accordance with clearly established law, together with its persistent lack of candor with the court, raise serious concerns about what else the CIA may be doing to obstruct the public's legitimate efforts to learn about the agency's past and present activities,” said Pat Carome, counsel for the Archive from WilmerHale LLP. “Judge Kessler's ruling represents a stern reminder to the CIA that it must live up to our nation's open government laws.”
“Sadly, it took us 28 months, repeated CIA misrepresentations to the court, and extensive litigation to get the CIA to do a simple thing—to follow the law,” commented the Archive’s General Counsel, Meredith Fuchs. “This case shows why the OPEN Government Act of 2007 was so sorely needed and why Congress is to be commended for making the FOIA a priority. The Freedom of Information Act is stronger today thanks to the amendments and a court that was willing to enforce the law.”
The Archive’s lawsuit was filed 28 months ago after the CIA ignored a 1990 court order and rejected the Archive’s news media status for 43 requests. The agency claimed the requests did not relate to newsworthy topics and refused to recognize the Archive’s publication activities as determinative of news media status. Following extensive but unsuccessful efforts to halt the CIA’s illegal practices through administrative appeals and negotiations, the Archive filed suit. After no response or defense by the CIA, the Archive filed for summary judgment on September 8, 2006. Late that same evening, the CIA purported to reverse its prior determinations regarding the 43 FOIA requests. In its September 8, 2006, letter the CIA also promised that it would treat the Archive as a “representative of the news media” for all of the Archive’s future non-commercial requests. The Court took the CIA at its word and dismissed the lawsuit. In the meantime, however, the CIA began denying news media status again. The Archive attempted to resolve the issue directly with the agency, but the CIA refused to even consider the Archive’s administrative appeals. Thereafter, the Archive returned to court to seek reconsideration of the court’s dismissal based on the CIA’s continuing illegal practices. In response to the Archive’s motion, on September 5, 2008, the CIA again sent an eleventh hour letter on the day its court filing was due, this time purporting to “sincerely apologize” for its “administrative mistake[]” of denying news media status even after it assured the court it would follow the law. Then, on the next business day, the CIA again failed to grant the Archive news media status, in direct contravention of the “sincere apology” letter they filed with the court.
In granting the Archive’s motion for reconsideration, Judge Kessler characterized the CIA’s conduct as “extraordinary misbehavior” and concluded that “the Defendants’ past actions strongly suggest that their alleged misconduct will recur.” Deeming the CIA’s apologies and voluntary reversals insufficient, the court reconsidered the merits of the case and concluded that the CIA’s denials of the Archive’s news media status were unlawful. The court ordered that “the CIA must treat the Archive as a representative of the news media for all pending and future non-commercial FOIA requests.”
Attachments:
Court Opinion Ordering CIA to Grant News Media Status
CIA September 5, 2008, Apology Letter for Failing to Grant News Media Status
CIA September 8, 2008, Letter Failing to Grant News Media Status Despite Apology
CIA September 8, 2006, Letter Promising to Grant News Media Status
Archive Motion for Reconsideration
CIA Opposition to Motion for Reconsideration
Archive Reply on Motion for Reconsideration
Archive Motion for Summary Judgment

[Dawn Meredith]

Wanna bet the WH "loses" the emails anyway. They will say- like Tricky Dick with the 18 minute gap- that it was "by accident".
Dawn

[Magda Hassan]

Washington, D.C., January 14, 2009 - The United States District Court for the District of Columbia today granted the National Security Archive's emergency motion for an extended preservation order to protect missing White House e-mails. With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

"There is nothing like a deadline to clarify the issues," said Archive Director Tom Blanton. "In six days the Bush Executive Office of the President will be gone and without this order, their records may disappear with them. The White House will complain about the last minute challenge, but this is a records crisis of the White House's own making."

Counsel for the Archive, Sheila Shadmand from Jones Day made clear: "The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail. Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything. At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again."

Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition. (Courtroom 6 of the E. Barrett Prettyman Federal Courthouse)

The Archive filed its emergency motion for an extended preservation order on March 11, 2008. After considering the objections of the White House, Magistrate Judge Facciola issued two reports, on April 24 and July 29, 2008, recommending that District Judge Henry H. Kennedy issue an order requiring search, surrender and preservation of the computer workstations and external media devices, such as CDs, DVDs, memory sticks, and external hard drives. Today's order adopts those reports and recommendations, granting in part the Archive's emergency motion.

The National Security Archive filed its lawsuit on September 5, 2007 against the Executive Office of the President and NARA, seeking to preserve and restore missing White House e-mails. A virtually identical lawsuit filed subsequently by Citizens for Responsibility and Ethics in Washington (CREW) has been consolidated with the Archive's lawsuit.

http://www.nsarchive.org

Updated Posting - January 14, 2009, 6:00 pm, Washington, D.C. - At a hearing today concerning the risks posed by the presidential transition to the recovery of millions of missing e-mails from the Executive Office of the President (EOP) in the National Security Archive's lawsuit seeking restoration of those e-mails, the White House acknowledged that it has done little to recover e-mail files from computer workstations and nothing to collect external media storage devices that could hold e-mails. These admissions came despite the issuance of a report and recommendation in April 2008 by a federal magistrate judge calling for the White House to locate and preserve data from the workstations and external media storage devices. Earlier today the court issued an order requiring steps to be taken to secure files from individual computer workstations, memory sticks, zip drives, DVDs and CDs.

"The White House admitted it did nothing to stop people working in the White House from disposing of memory sticks, CDs, DVDs and zip drives that may have been the sole copies of missing e-mails on them," stated Sheila Shadmand from Jones Day, counsel for the Archive. Ms. Shadmand warned: "We believe our ability to get a complete restoration of the White House record from 2003 to 2005 and evidence of what went wrong has been compromised."

The Archive's Director, Tom Blanton noted: "If this kind of irresponsible conduct can take place despite the Executive Office of the President's obligations under the Federal Records Act and this lawsuit, then perhaps the country needs more oversight of record-keeping in the White House."

"The court made clear today that any additional work that the White House has to do before its occupants depart is its own fault," said Meredith Fuchs, the Archive's General Counsel. "As the magistrate judge implied, they rolled the dice hoping they would get this case thrown out of court and they lost. Now they have to make up for lost time."

Despite prior contradictory statements about whether any White house e-mails had been lost, the government's lawyers also admitted they have now located at least 14 million missing e-mails and that a major restoration project has been commenced to recover additional missing e-mails from backup tapes.

At today's hearing, the Archive and CREW applauded the order issued earlier today by Judge Henry H. Kennedy Jr. and requested:

* An inventory documenting the collection of external media devices;
* An inventory of backup tapes preserved pursuant to this lawsuit;
* The naming of a document custodian at the National Archives and Records Administration to ensure the records are properly secured;
* Assembly of an administrative record reflecting the agencies actions; and
* Assurances from the White House that the entire Executive Office of the President will comply with the extended preservation order.

[Peter Lemkin]

While they often do really destroy electronic information and documents, as often they 'privatize' them - giving them from the custody of the 'government' to off the shelf private tentacles of the Octopus.....they do seem to love to hold on to this stuff - and also just LOVE not to let it be public, as by Law [they care NOT ONE JOT about legality - only money and power, money and power]!hakehands:

[David Guyatt]

I would have been astonished IF this Administration had complied with the email archives demand. Bush has regularly ignored, abused and overridden the law. He doesn't give a damn about it.

And, I suppose, why should he. He knows he has nothing to fear and nothing to lose by ignoring this order. The problem will simply fade away in time and be forgotten. There are no teeth involved that will come and bite him.