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Answers to Questions We Have Been Asked about the E-mail Lawsuit

December 16, 2009

It was a somewhat big week for us at the National Security Archive because, thanks to the help of some wonderful attorneys at Jones Day, Sheila Shadmand, Kristen Lejnieks, and Joe Clark,  and a very able technical expert, Al Lakhani, at Alvarez & Marsal, to folks at Citizens for Responsibility and Ethics in Washington, and the work of lawyers at the Department of Justice and officials from the Obama Administration and the National Archives and Records Administration (NARA), we were able to settle our lawsuit concerning e-mail preservation at the White House.  Settling any lawsuit usually involves compromises for both sides and we have seen that here.  For the Archive, a key part of the settlement are agreements from the Obama Administration to restore additional days of federal and presidential records emails beyond those originally planned by the Bush Administration.  Our lawsuit will not be dismissed until these restorations are complete and we have received all of the remaining documents on what happened to permit the loss of the e-mails in the first place.

We have received questions from many sources that I wanted to try to respond to more broadly.

Several people have contacted us and asked questions about the Obama Administration’s e-mails and, specifically, President Obama’s Blackberry messages.  We have been briefed about the Executive Office of the President’s current e-mail archiving system and we have been given the opportunity to ask detailed questions about its critical characteristics.  We recognize, however, that the public should not just take our word on this issue.  In January the Administration, under the settlement, will release a narrative description of the steps they are taking to preserve their own records.  If what they have represented to us is correct, then it appears that all e-mails in and out of the official, unclassified, e-mail system are being preserved by component, which should make searching for them one day far easier and less costly those of the the prior Administration.

Even so, the lawsuit we are settling demonstrates that things can go wrong and suggests how important it is for officials at the highest levels to care about records management, preservation of the historical record, and accept the public’s right to understand what its elected leaders are doing.  The facts behind this lawsuit also demonstrate the critical role that whistleblowers play in our system – since the controversy was largely brought to light by a whistleblower from the White House Office of Administration whose information was published in a report issued by CREW – and the importance of congressional oversight, such as the work conducted by the House Oversight and Government Reform Committee on this matter.

Having said that, this lawsuit reinforced our concern that there is not sufficient oversight over the preservation of presidential records, including presidential record e-mail.  There has traditionally been significant resistance to granting broader oversight responsibilities to the National Archives and Records Administration.  Some of this stems from constitutional concerns and presidential privileges.  Certainly, the Obama Administration may make choices that allow better monitoring by NARA, and we hope they do.  But, Congress also could pass a law that would cement a better oversight system for this Administration and future administrations.

With respect to President Obama’s Blackberry, well, I suspect those messages are sent over the classified system, which was not part of our lawsuit.  We have no reason to think there is a problem with preservation on that system, but if we learn otherwise we certainly will explore the viability of legal action.

In addition, many people have expressed concern that President Obama’s messages will be protected because he will call them “personal” or “confidential.”  Under the Presidential Records Act, which is the law that would govern President Obama’s own communications, these records should be turned over to NARA at the end of the Administration.  Under that law, such records would not be available to the public until at least five years after the conclusion of the Obama Presidency and in some instances the records would not be available for 12 years.  This is the same law that applies to the records of Presidents Reagan, Bush 41, Clinton, and Bush 43.

Under President Bush (43), an Executive Order was issued that would have made it possible for a former president (or vice president) to exert continued control over such records beyond the 12 years.  Fortunately, President Obama revoked that Executive Order on January 21, 2009.  So, after the 5 or 12 years has passed, a former President or Vice President does not have the ability to unilaterally hold up the release of records from their administration.  This rule will apply to President Obama and Vice President Biden unless another executive order is issued to change it or Congress changes the Presidential Records Act.

Some communications between government officials and others actually are personal, however, and do not belong to the American people.  For instance, when the President sends a birthday message to his sister, that really is personal.  The problem today, however, is that e-mail and computers have allowed a merging of personal and official identities that causes problems.  All government personnel are challenged by this and so there is clearly a need for good training on what is official and what is personal, and what can be done on official systems and what should be reserved for a personal e-mail system outside of business hours.

Having now been in litigation with four presidential administrations, the National Security Archive is hopeful that this sort of thing will not happen again.  Otherwise, we will be back in court, fighting to save the historical record.

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