Even though the White House Office of Administration (OA) has complied with Freedom of Information Act (FOIA) requests for decades, a court yesterday supported the Bush administration's claim that the OA is not a federal agency and therefore not subject to the FOIA. The Bush administration made the claim last August. The court dismissed a case brought by Citizens for Responsibility and Ethics in Washington (CREW), which was using the FOIA to seek documents from the OA about missing White House emails. The decision means the OA will not have to release its documents to CREW, which had hoped to use them in a separate lawsuit that aims to force the recovery and preservation of any missing emails.
While the ruling is a setback for CREW and the National Security Archive (NSA), its co-plaintiff in the White House emails lawsuit, the battle is far from over. CREW plans to appeal this decision. In the meantime, the main lawsuit, which focuses on the recovery and preservation of the emails, will carry on without the OA documents. CREW and the NSA already have access to some information about the OA's email failures because House government oversight committee chairman Henry Waxman (D-Calif) obtained and released some of that information earlier this year. Recent developments in the main lawsuit have favored the plaintiffs, with a magistrate judge issuing recommendations that the White House didn't like, including one that suggested the White House be ordered to secure portable devices, like BlackBerrys, that could contain versions of some of the missing emails. The judge in that case could still force the OA to take measures to recover and preserve missing emails. But each day that goes by until then will make any deleted emails present in "slack space" on hard drives harder to recover, and get the Bush White House one day closer to running out the clock.