Court sides with Bush White House on keeping e-mail data private

Office's documents not subject to open records law

May 20, 2009|Nedra Pickler, Associated Press

WASHINGTON - A federal appeals court ruled yesterday that the office that has records about millions of possibly missing e-mails from the Bush White House does not have to make them public.

The appeals court ruled that the White House Office of Administration is not an agency subject to the Freedom of Information Act, allowing the White House to keep secret documents about an e-mail system that has been plagued with problems.

During its first term, the Bush White House failed to install electronic record-keeping for e-mail when it switched to a new system, resulting in millions of messages that could not be found. The Bush White House discovered the problem in 2005 and rejected a proposed solution.

A group known as Citizens for Responsibility and Ethics in Washington sued to get documents about the office's electronic record-keeping.

In response to court orders, the White House disclosed that it has located nearly 3,500 pages of documents about problems with its e-mail system. But the Bush administration argued that the office's records are not subject to public disclosure, even though it had responded to hundreds of other FOIA requests in the past decade and even included instructions on its website for filing them.

A lower court sided with the Bush administration last June, and yesterday's opinion upheld that order.

"We conclude that the Office of Administration is not [subject to FOIA requests] because it performs only operational and administrative tasks in support of the president and his staff and therefore, under our precedent, lacks substantial independent authority," the three-judge panel said in its opinion.

The case was argued before the judges in November, before President Obama took office. But the Obama administration is siding with the previous administration in trying to kill another lawsuit that seeks to recover any missing e-mails.