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DC Circuit rules White House not required to release e-mail records

[JURIST] The US Court of Appeals for the District of Columbia [official website] ruled [opinion, PDF] Tuesday that the White House Office of Administration (OA) is not required to release Bush administration e-mails under the Freedom of Information Act (FOIA) [text]. A three-judge panel found that since OA is not an "agency" within the meaning of FOIA, it is not obligated to respond to FOIA requests, including those filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archives (NSA) [advocacy websites] seeking information regarding missing Bush administration emails. Relying on judicial interpretations of the 1974 amendments to FOIA, the court concluded that OA, "provided to the President only operational and administrative support. Where that is the purpose and function of the unit, it lacks the substantial independent authority we have required to find an agency covered by FOIA." Pointing to OA's long history of responding to FOIA requests, CREW's chief counsel Anne Weismann urged [press release] the Obama administration to grant access to OA as a matter of policy.

The controversy over lost emails began in 2002 [NSA chronology], when the White House dismantled its automated e-mail archiving system, and arose throughout the Bush administration, first during the CIA leak investigation and again during the US Attorney firing scandal [JURIST news archives]. In February 2008, CREW urged then-US Attorney General Michael Mukasey to appoint a special counsel [JURIST report] to investigate whether the White House had violated the Federal Records Act and the Presidential Records Act [texts] in failing to preserve White House e-mails. CREW and NSA originally brought their suits in May 2007 and November 2007 [complaints, PDF], respectively. CREW has publicly alleged that White House officials may have deliberately lost or tampered with e-mail records to hide illegal conduct.

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