When the Obama administration came in, there was an interest in settling the lawsuit. We said any settlement had to have three key components: there has to be some restoration of missing e-mail, we have to have assurances that the White House is now using an appropriate system, and we need documentation because we think the public needs to know the story. So we got tens of thousands of documents from the White House as part of our settlement.
What were the grounds for your lawsuit?
We were arguing that the failure of the White House to preserve and restore the missing e-mails was a violation of the Federal Records Act.
There are components of the White House that produce federal records—like the Council on Environmental Quality, for example. And there are components that create presidential records. The courts have said that private groups cannot sue for the same problems with presidential records. And normally that would have precluded this lawsuit.
A bunch of different administrations have been sued over this issue. The Clinton administration was sued, and they set up a system that maintained federal and presidential records separately. When Bush got in and scrapped that system, they didn’t maintain them separately. They just dumped them all together.
It was a problem legally for them, but it helped us. That gave us a basis to go in and say, “Well, we’re suing over the federal records.” Since they couldn’t differentiate between them, when they did restoration they had to restore both. I think it’s the greatest irony.
Huh. If they had gone ahead and fixed the system for the federal records, would there be anything that anyone could do about them not having an adequate system for presidential records?
No. The bottom line is that if the Bush White House had chosen to say, “We don’t want to put in a good system for presidential records,” I’m not sure there was anything we could have done.
And that’s a big problem. We have been pushing for legislative changes, amendments to both the Federal Records Act and the Presidential Records Act. There has been legislation that has been proposed—and that I think is getting some renewed interest—that would require the Archives to certify that the White House system meets requirements for presidential records.
But the archivist would have no ability to compel the White House to do anything. Congress has been really afraid of the constitutional issue lurking in the background: if you have legislation that directly limits or controls how a president manages his or her presidential records, that this is going to run afoul of the constitution.
The argument I make in response to that is that I think that if all you are doing in legislation is requiring that the system have certain functions consistent with archival practice, I don’t think that’s unconstitutional.
Why did this problem happen? It seems hard to believe that they preferred Microsoft Exchange so much that it was worth scrapping the Clinton administration’s system [ARMS, the Automatic Records Managements System] that worked with Lotus Notes.
Based on my review of the documents, I think they had a patent disregard for their record-keeping obligations. It just wasn’t a priority for them. Clearly the technical people within the White House understood that practices they were pursuing were not in compliance with their legal obligations, and kept telling them that.
It’s understandable that they don’t want to continue ARMS, because Lotus Notes is not the preferred system for many people and organizations. I don’t think there’s anything alarming about that. They try to tinker with ARMS to see if it can preserve electronic records created in Microsoft Exchange. And they can’t get it to work.
So their people tell them you really can’t go through with this migration if you don’t have a system in place, and they ignore it. And then they come up with a new system and they scrap that.
That’s the ECRMS [Electronic Communications Records Management System].