As reported on FOIABlog, last evening, District Court Judge Colleen Kollar-Kotelly granted CREW's request for a stay pending appeal in CREW v. Office of Administration, a lawsuit seeking documents under the Freedom of Information Act (FOIA) regarding the White House's loss of millions of emails from White House servers.

Although Judge Kollar-Kotelly had ruled last month that the Office of Administration (OA) is not an agency subject to the FOIA, CREW had sought a stay of that ruling to require the White House to preserve documents that would have to be produced, should CREW prevail on appeal. Justice Department lawyers had argued that a stay was unnecessary because they had assured CREW that the records would be preserved, but Judge Kollar-Kotelly rejected this argument, becoming the second judge to rule in litigation brought by CREW that assurances from the White House and/or its counsel that it will preserve documents are not a sufficient substitute for a court order.

Under the Presidential Records Act, all presidential records are transferred to the Archivist at the end of the administration. As a result, CREW is concerned that even if the court of appeals rules in CREW’s favor and finds OA is an agency, meaning that its records must be produced to CREW, once the records are transferred to the Archivist they will be difficult to recover. Although CREW had asked that OA maintain control of these records past the end of the Bush administration, the court ruled only that if the appeal is not resolved by January 5, 2009, CREW may renew its motion for a stay addressing the impact of the transition on the requested records.

After the stay was ordered, Anne Weismann, CREW's chief counsel, said,

This ruling is an important step in holding the White House accountable by ensuring that the records regarding the millions of missing emails are preserved. These records belong not to the president, but to the American people. The public deserves an explanation of what happened to the missing emails, and CREW will continue to fight to get that explanation.

Yesterday, a Federal District Court Judge ruled "that the Office of Administration (OA) is not an agency subject to the Freedom of Information Act (FOIA)."  CREW will appeal that decision. 

Today's Washington Post included the reactions to the decision from the Bush administration and CREW: 

The White House has been criticized by congressional Democrats, historians and watchdog groups over alleged sloppy retention of e-mails between 2001 and 2005, a period that included the Iraq war.

White House spokesman Tony Fratto said the White House "welcomed" the decision. CREW's executive director, Melanie Sloan, said in a statement that "we are disappointed in the ruling and believe the judge reached the wrong legal conclusion."

Anne Weismann, chief counsel for CREW, said the group will appeal the decision. She said she is worried that without prompt judicial action, the records will not become public "for many years" after President Bush leaves office.

In another lawsuit, CREW and another group, the National Security Archive, have asked a federal judge to order the Bush administration to take steps to preserve and retain the e-mails in question.

Major development in CREW's lawsuit against the White House Office of Administration. 

Following an on-the-record conference call on March 28, 2008, District Court Judge Colleen Kollar-Kotelly issued an Order on March 30, 2008 in CREW v. Office of Administration, ordering the Office of Administration (OA), a White House component, to produce documents and information related to its decision that it is no longer an agency subject to the Freedom of Information Act (FOIA). 

Judge Kollar-Kotelly agreed with CREW that documents showing when OA determined it was no longer subject to the FOIA and the Federal Records Act are relevant to determining whether OA is an agency and therefore is required to respond fully to CREW's request for documents relating to OA's discovery in the fall of 2005 of millions of e-mails on White House servers.

The documents can be found here. 

The private organization is, of course, CREW.  We made significant progress in our lawsuit against the White House Office of Administration yesterday -- quite significant:

A federal judge has agreed to let a private group delve into the operations of an office at the White House as part of a controversy over whether large amounts of e-mail have disappeared.

Permitting any private organization to inquire into White House functions is an unusual step. And U.S. District Judge Colleen Kollar-Kotelly (KO-lar KO-tell-ee) made that point clear in her six-page order Monday.

Major development today in CREW's lawsuit against the White House Office of Administration in our case over the missing White House e-mails.

Today, Federal District Court Judge Colleen Kollar-Kotelly issued an order allowing CREW)to conduct limited discovery in the case of CREW v. Office of Administration (OA). The court order can be found here.

For all the non-lawyer types, in short, discovery is a key part of the pre-trial process where the parties provide relevant information (including documents) to each other. Because the Office of Administration claims to be exempt from the Freedom of Information Act (FOIA) -- despite responding to FOIA requests in the past -- CREW argued that discovery was necessary to determine whether the Office of Administration is indeed an agency as defined by federal law. Today, the court agreed with us. This ruling means that within the next 10 days, CREW and the White House will have to develop a "Joint Discovery Plan."

In our lawsuit, CREW is seeking documents that the Office of Administration prepared assessing the scope of the missing White House email problem and its proposed recovery plan.

CREW is suing the White House Office of Administration for failing to respond to our FOIA request by providing records that would document the White House’s knowledge of millions of missing email, its failure to restore the email or put in place an electronic record-keeping system that would prevent this problem, and the possibility that the email were purposefully deleted.  Our brief can be found here.   The Office is trying to claim its exempt from FOIA requests. 

Quite simply, the White House brief is factually and legally wrong: 

• The executive orders establishing OA provide expressly that it is to provide administrative support to all components of the Executive Office of the President (“EOP”) except the president (EO 12028).
• The executive orders give to OA’s director the authority to act as the president would (EO 12122).
• It is therefore clear that far from advising and assisting only the president, OA advises and assists all EOP components except for the president and exercises considerable independent authority.
• OA has also held itself out consistently as subject to the FOIA.
• OA has published FOIA regulations since 1980 that make clear OA is required under the FOIA to provide public access to its records.
• Until this weekend, the White House’s own website stated that OA is an agency subject to the FOIA.
• OA’s website contains annual FOIA reports the agency is required by law to submit.
• The Department of Justice’s website (under FOIA) lists an agency FOIA contactor OA.
• In 1996, OA filed a brief in the Supreme Court in Armstrong v. EOP, arguing that EO 12122 gives the director of OA “a broad delegation of authority” and explaining that OA’s duties do not include the president.

Two weeks ago, CREW documented how the White House website conflicted with the Bush administration's claim that the Office of Administration was not subject to Freedom of Information Act (FOIA) requests.  On August 23, 2007, the Washington Post took note of the  conflict between the White House website and the White House position: 

The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.

The White House website has been scrubbed -- and a new message indicates that the Office of Administration is now exempt from FOIA requests.  

Before:

 After: 

Melanie Sloan appeared on Hardball last night to talk about the contradictions between what the Bush administration said in court documents about FOIA requests -- and what the White House website said. Hardball managed to find someone to try to defend the Bush administration's contradictions. But, as Melanie notes, the law is the law and even the Bush administration is supposed to follow the law:

Chris Joyner, who writes about First Amendment issues at the Clarion-Ledger, asks who has "the easiest job in the world?"   He also has an answer: 

Apparently, it's FOIA officer Carol Ehrlich in the White House's Office of Administration.

The Justice Department is claiming the office, which handles (surprise) administrative functions for the White House, is not covered by FOIA, despite the fact that it has a FOIA officer and has responded to FOIA requests in the past. In fact, an executive order has the office was under a FOIA improvement plan. No matter, Justice said. 

Noting that CREW's Melanie Sloan was "not impressed with Justice's claim,"  Mr. Joyner also has a suggestion for anyone who know Ms. Ehrlich:

Anyway, if you went to school with Carol and are looking to catch up, now is a good time to call. Turns out, her workload just got a lot lighter.

This week, the White House has been making the argument that somehow the Office of Administration is no longer subject to the Freedom of Information Act (FOIA). CREW has just learned from a source that the White House has begun peeling off all of the Office of Administration FOIA-related content.

Stay tuned...