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White House E-mail Lawsuit Settled

December 14, 2009

The National Security Archive (the Archive), Citizens for Responsibility and Ethics in Washington, the White House, and the National Archives and Records Administration (NARA) today entered into an agreement setting forth general principles that will resolve the missing White House e-mail lawsuit filed first by the Archive in September 2007.

“We commend the Obama Administration for making a strong effort to clean up the electronic data mess left behind by the prior administration,” commented Sheila Shadmand, counsel for the Archive.

“We now know that many poor choices were made during the Bush Administration and there was little concern about the availability of e-mail records despite the fact that they were contending with regular subpoenas for records and had a legal obligation to preserve their records for the nation’s long term historical memory,” explained Meredith Fuchs, the Archive’s General Counsel.

“We have done our best in this case to maximize the number of e-mails that have been found or reconstructed from disaster recovery backup tapes,” explained Kristen Lejnieks, counsel for the Archive. “The government can now can find and search over 22 million more e-mails than they could in late 2005. They also will restore 94 calendar days from backup tapes. We certainly hope that many major gaps in the record have been filled.”

“The absence of best business practices permitted a loss of data that was completely preventable,” explained Al Lakhani, an expert, and Managing Partner with Alvarez & Marsal.  “Today’s technology permits reliable archiving and effective control over deletion of records.”

Commenting on the state of the current White House e-mail system, Ms. Fuchs stated: “We have been briefed on the system in use since the beginning of the Obama Administration and we believe that the system now in use fixes the significant problems with the prior system, including by capturing everything, properly categorizing the e-mails, and preventing unauthorized deletion.”

The Archive’s lawsuit impacted White House e-mail records in a number of ways:

  • Increased the Number of Preserved Emails: As a result of the three phase e-mail restoration process pursued during this lawsuit, the Defendants found, sorted and properly categorized 22 million more emails than they could find in late 2005. (Everett Decl. at 6).  In addition, during this process the Office of Administration identified “other repositories” of email, “which added approximately one million unique messages” to the email archive.  (Everett Decl. at 8.)
  • Preservation of Records During the Transition: The lawsuit ensured the preservation of all media during the presidential transition that contained emails from March 2003 through October 2005.  The backup tapes will continue to be preserved for 12 years after the settlement of this suit, ensuring that this crucial data remains available to the public.
  • Disaster Recovery Backup System: The lawsuit drew attention to the poor backup system utilized by the White House Office of Administration for the Executive Office of the President and helped lead to implementation of more reliable practices.
  • Better Searching: EOP/OA completely revamped its process for allocating messages to presidential and federal records components at the White House so that future records searches will be more accurate.
  • Restored Missing Emails from Backup Tapes: At the completion of restoration efforts, this lawsuit will have resulted in the restoration of 94 days worth of emails from disaster recovery backup tapes –likely adding hundreds of thousands of unique messages to NARA’s archive. These include 21 calendar days (containing 48 component days) that the White House identified as statistically low, 33 additional days that the plaintiffs identified, and 40 sample days.
  • Going Forward System: This lawsuit paved the way for a new e-mail archiving system currently in use at the White House.

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