WASHINGTON A federal court tore into the Bush White House today over the issue of millions of apparently missing e-mails, saying the administration had failed in its obligation to safeguard all electronic messages.
In a four-page opinion, U.S. Magistrate Judge John Facciola said the White House was ignoring court instructions to search a full range of locations for all electronic messages that may be missing.
The Executive Office of the President, Facciola said, was limiting its search to offices subject to the requirements of the Federal Records Act, while sidestepping offices subject to the preservation requirements of the Presidential Records Act.
There is a profound societal interest as well as a legal obligation to preserve all records and "the importance of preserving the e-mails cannot be exaggerated," Facciola wrote.
The Bush White House has represented to the court that no records created in an office covered by the Presidential Records Act are transmitted to offices covered by the Federal Records Act. But there is no factual record on which to base that conclusion, said Facciola.
He ordered the EOP to conduct a search of all offices regardless of which law covers a White House office, saying the issues in the case must be dealt with in "true emergency conditions" because there are just two business days remaining before the Bush administration ends.
"The records at issue are not paper records that can be stored, but electronically stored information that can be deleted with a keystroke," Facciola wrote. "Additionally, I have no way of knowing what happens to computers and to hard drives in them when one administration replaces another."
Facciola's opinion raises questions about the completeness of the Bush administration e-mail search. The Justice Department says the government has finished a search that entailed spending more than $10 million to locate 14 million e-mails.
Facciola's opinion is the third time in two days that the U.S. District Court has taken the Bush White House to task for its handling of missing e-mail, a problem first publicly disclosed three years ago by the federal prosecutor investigating the administration's leaking of Valerie Plame's CIA identity.
Yesterday, U.S. District Judge Henry Kennedy issued a document preservation order, directing the White House to search employee workstations for e-mails created between March 2003 and October 2005.
The government had argued for dismissal of the lawsuits by Citizens for Responsibility and Ethics in Washington and the National Security Archive, but Kennedy rejected the request late last year.
At a hearing yesterday afternoon, Facciola admonished the White House for not previously conducting a search of individual workstations as he had recommended in a report last April.
"You rolled the dice that you'd win and you lost," Facciola said during the hearing. "I'm not delighted that you didn't do anything after April and that we're in the fix that we're in."
The administration is in the process of transferring over 300 million e-mail messages to the National Archives, said White House spokesman Scott Stanzel, in addition to over 25,000 boxes of records.
Lawyers for the two groups want the White House to be required to produce a detailed inventory of what it has found and what will be transferred to the National Archives. So far, they say, the administration has refused to provide those details.
"Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything," said Sheila Shadmand, who is representing the National Security Archive.
In response to Facciola's opinion, a spokesperson with CREW said that group planned to pursue the matter in court after the Obama administration takes office.