The case of the missing e-mail
A federal magistrate judge on Thursday chastised the Bush administration for failing to fully answer questions related to a long-running dispute over missing White House emails. The White House is facing lawsuits from two public interest groups, Citizens for Responsibilty and Ethics in Washington and the National Security Archive at George Washington University, demanding that the White House restore the missing e-mails and put in place systems to prevent further e-mail losses. Administration officials were ordered to provide detailed information about the burdens involved in taking immediate actions to preserve copies of hard drive, tapes, and other media that may contain copies of the missing e-mails.
The ongoing dispute spotlights a part of the executive branch that doesn’t often get much attention: its e-mail system. Two laws govern the retention of executive branch documents. The Federal Record Act requires the head of each federal agency to ensure that documents related to that agency’s official business be preserved for federal archives. The Watergate-era Presidential Records Act augmented the FRA framework by specifically requiring the president to preserve documents related to the performance of his official duties. A 1993 court decision held that these laws applied to electronic records, including e-mails, which means that the president has an obligation to ensure that the e-mails of senior executive branch officials are preserved.
In 1994, the Clinton administration reacted to the previous year’s court decision by rolling out an automated e-mail-archiving system to work with the Lotus-Notes-based e-mail software that was in use at the time. The system automatically categorized e-mails based on the requirements of the FRA and PRA, and it included safeguards to ensure that e-mails were not deliberately or unintentionally altered or deleted.