Debate continues over White House policy on email preservation

Lawyers say the Obama administration's fondness for electronic communications could complicate the issue.

The Obama administration, Congress, the courts and open government advocates are quietly haggling over an alleged Bush-era secrecy practice of missing e-mails, but the issue could become more complicated for President Obama because of his administration's fervent embrace of electronic communications, open access lawyers said.

Public interest groups in September 2007 filed a suit against the Bush administration and the National Archives and Records Administration to restore millions of missing White House e-mails during Bush's first term.

The Obama administration, which inherited the case, and the activists who brought the suit agreed in late March to postpone the suit until the parties discussed whether the matter can be resolved outside the courts, noted an Obama transparency report card issued by the Brennan Center, a nonpartisan public policy institute that is affiliated with the New York University School of Law. The report was discussed on Friday at a talk in Washington, attended by local attorneys and members of the Center's D.C. steering committee members.

Some of those involved in this case filed a lawsuit against the Clinton administration that also challenged the competence of electronic record-keeping at the White House.

"The Clinton administration had a problem. The Bush administration had a problem. And the Obama administration, clearly, they are creating and are going to have to preserve a lot more electronic records, because even the president wants to use e-mail," said Anne Weismann, chief counsel at Citizens for Responsibility and Ethics, one of the plaintiffs in the lawsuit.

"Hopefully, the suit will lead to better practices," said Emily Berman, counsel for the Brennan Center, in an interview. "But that's what we have the courts for."

Much of the present battle stems from revelations that numerous White House officials used e-mail accounts maintained by the Republican National Committee, which periodically deleted e-mails from its servers. As a result, the Bush White House could not account for official e-mails sent and received during hundreds of days between 2003 and 2005, according to Democratic lawmakers who investigated the matter.

The House passed a bill last year that would require the White House to preserve all electronic communications. The bill stalled in the Senate. In April, the House Oversight and Government Reform Committee approved a similar bill, H.R.1387, which would direct NARA to create standards for capturing, managing and safeguarding White House electronic messages and establish, within four years, a system for managing e-mail records from executive branch agencies.

But public interest groups argue the bill is too weak. It should mandate that agencies have two, not four, years to establish electronic record-keeping systems and penalize agencies for failing to comply with all federal records requirements, they argue.

The committee acted on the bill before talking with interested stakeholders, Weismann said. "We were very disappointed with their legislation," she said. "Everyone is pleased that they are making electronic recordkeeping a priority on the federal records side and trying to plug some of the loopholes on the presidential side but there are still gaps."

The House committee continues to review the bill, a committee aide said.

"What Congress needs to do is mandate that they recognize that electronic records are records just like paper records," said Meredith Fuchs, general counsel at the National Security Archive, a nongovernmental institute that makes available declassified documents through the Freedom of Information Act. The archive also is a plaintiff in the suit. "As long as Congress is not interfering with executive privilege, records management is something that they could do," she added.

After taking over the White House, the Obama administration filed a motion to dismiss the e-mail suit, which the open government advocates opposed. Both sides then agreed to withdraw all pending motions to give the White House a chance to provide the plaintiffs with information about what transpired, what was done to restore missing records, and what is being done to ensure retention.

In the meantime, the Brennan Center has issued the Obama White House an "incomplete" for its efforts to be transparent in the litigation surrounding presidential e-mail preservation.