It looks like we won't be seeing records detailing just how badly the Bush White House screwed up their email system after all.
The D.C. Circuit has ruled that the White House Office of Administration (OA) isn't required to release the records under the Freedom of Information Act since the office doesn't qualify as an "agency" under the act. The controversy stems from the White House's 2005 revelation that the
failure to install a records-management system had resulted in the loss
of potentially millions of messages. The messages were from
politically and historically sensitive periods - including the run up
to the Iraq war and the outing of CIA operative Valerie Plame.
watchdog group called Citizens for Responsibility and Ethics in
Washington filed a lawsuit in May of 2007 to recover records pertaining
to the loss, including plans to recover the missing emails, and
analyses of other problems with the White House email system.
suit came in response to the OA's refusal to respond to an FOIA
request, despite the fact that it had regularly produced documents
under the FOIA in the past.
The lower court ruled that the OA
was not an agency as defined by the FOIA since it did not possess the
kind of "substantial independent authority" required to qualify as an
The D.C. Circuit upheld the district court's ruling,
finding that the OA was established in order to carry out tasks that
are "entirely operational and administrative in nature." CREW argued
that the OA's past responses to FOIA requests rendered it an agency
subject to the FOIA, but the court disagreed. According to the D.C.
Circuit, past interpretations of the FOIA's reach have no bearing on
the actual legal question of whether an entity is an agency subject to
the requirements of the FOIA.
The decision is regretable for
several reasons: First, the public will now likely never see records
regarding the loss of historically important emails, and speculation
over whether the loss was deliberate will remain a cloud over the OA
going into the future.
Second, the D.C. Circuit's precedent will
likely lead to many other entities reconsidering whether they qualify
as agencies, which will probably result in Americans having less access
to documents about the workings of their government.
most disturbing aspect of this case, however, is the Obama
administration's support of the secretive Bush OA policy, even after
President Obama's calls for a more transparent government. Together
with the administration's employment
of the expansive state secrets arguments employed under the Bush adminstration, the
arguments in this case by the Department of Justice signal a disturbing
trend towards more years of executive furtiveness.
See Also: Court: White House does not have to turn over e-mail records (The CNN Wire)