White House Can Keep Records|on Bush Emails Private, Court Rules

     (CN) – The White House has no duty to disclose records about millions of missing emails, the D.C. Circuit ruled Tuesday, because the office holding the records is not an agency subject to the Freedom of Information Act.

     The Citizens for Responsibility and Ethics in Washington (CREW) filed a FOIA request with the Office of Administration in April 2007, seeking information about the missing emails. CREW claimed that between March 2003 and October 2005, at least 5 million emails “had been deleted from the servers and were recoverable only on back-up tapes.”
     CREW said the Executive Office of the President discontinued an automated records management system in 2002 without replacing it with any system to preserve White House correspondence. “As a result, since 2002, it has been possible for any emails housed on the White House server to be manually deleted by anyone who has access to the servers,” CREW claimed.
     The office agreed to produce the records, but asked CREW to scale back its request or set a new deadline, saying it didn’t have enough time to process CREW’s broad request.
     CREW filed suit when the deadline passed and the White House had not turned over the documents.
     Following discovery, U.S. District Judge Colleen Kollar-Kotelly granted the office’s motion to dismiss after determining that the office is not an agency subject to FOIA. The judge also ordered the office to preserve and maintain any records that might be useful to CREW.
     To test whether an agency is subject to the FOIA, courts traditionally examine whether the entity has “substantial independent authority.”
     Judge Griffith of the Washington, D.C.-based federal appeals court said the Office of Administration is too closely tied to the Executive Office of the President to meet this requirement.
     “Because nothing in the record indicates that OA performs or is authorized to perform tasks other than operational and administrative support for the President and his staff, we conclude that OA lacks substantial independent authority and is therefore not an agency under FOIA.”
     The court concluded that the office need not comply with CREW’s requests.

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