Some people are mistaken—they think we actually got the e-mails. We don’t have the e-mails, and we won’t get them for some time. They are presidential records of Bush that are with NARA as part of the Bush collection.
Part of your settlement allowed you and your co-plaintiffs, the National Security Archive, to pick what days to recover.
The Obama administration didn’t have any vested interest in any particular days, and they were open to us saying “These are days we are interested in.” We were very interested in the Valerie Plame Wilson investigation. Beyond those we looked at a spreadsheet the Obama White House provided us of days with low e-mail volume for each component and picked the lowest days that had not been designated for restoration.
During the Bush Years, the Office of Administration began to assert, that like most other White House components, that it was not subject to Freedom of Information Act requests, a decision that was upheld in court. Is that a sideline from that case?
Well… I’ll tell you, and you can judge. When we understood from our source that OA had done analysis of the problem, one of the first things we did was file a FOIA request. The OA initially accepted the request, and said it was going to be a while. We went into the court for a preliminary injunction, and we worked with the court on a timetable to do production. And then, just at the point that they were supposed to identify exemptions they were claiming, they came in with the legal position that they were no longer an agency subject to FOIA.
The OA and Justice would say—and there is some documentation of this—that this was an issue that had been on the table before. And yet I think the timing is very interesting. Ultimately, as it turned out the documentation we wanted we got we got through Waxman’s committee or the settlement.
So the court ended up agreeing that OA wasn’t subject to FOIA, but you still got the documents. But that’s kind of extraordinary. Not every document that OA has is going to become the subject of a congressional investigation or a White House settlement.
Exactly. And as an aside, a group of us early on in this administration sent a letter to the White House counsel asking on their own discretion that they go back to the practice of every other administration before Bush. And they’ve ignored it. But it does seem consistent with their transparency policy. It’s hard to argue that there are some really good internal reasons not to, given that it functioned from its creation as a FOIA agency until just a few years ago.
What do we know about how the Obama administration is handling the challenge of archiving their e-mails?
We had lengthy negotiations with the White House, and NARA was included because they were a party to our lawsuit. I’ve never heard from NARA that they weren’t happy with it. All of the information we’ve gotten tells us that they are complying with their record keeping obligations. It preserves electronic records electronically in a very state of the art, tamperproof way. It segregates presidential from federal records. And they have built in a lot of checks and balances to make sure that systems are working. I think the Obama White House was already on this course, and there was an added incentive that this would also be a basis of settling the lawsuit.
We got access to a lot of underlying documentation that covered what they were doing that we weren’t allowed to make public, because of legitimate concerns about protecting the system. The Obama administration did put together a description for public consumption.
This interview has been condensed and edited for continuity and clarity.