Accessing White House records next week and beyond

The Bush Administration is packing its boxes of records as it prepares to leave the White House next week — and is required by law to send most of those documents to the National Archives and Records Administration. But ensuring that the transition follows the law is troubling to a host of groups with pending records suits against the administration, who want to ensure the documents are retained and that their suits can still go forward.

This week the Justice Department was ordered to make copies of documents at issue in the House Judiciary Committee’s investigation into the firing of nine U.S. attorneys. Original documents will go to the National Archives, but Barack Obama’s incoming administration will have access to copies so they can defend the suit.

It is unfortunate that the parties should even have to ask for these measures — the Obama administration will be forced to defend Bush’s stance on access to these records or drop the suits all together.  Either task is impossible if the underlying information disappears into the bowels of the federal archiving systems, not to be seen for decades. 

In another records-related suit, Citizens for Responsibility and Ethics in Washington and the National Security Archive on Wednesday have sought similar protections for their lawsuit over missing White House e-mail, which is pending in U.S. District Court before Magistrate Judge John Facciola. 

At that hearing, the White House lawyers admitted they had “located” 14 million missing e-mail messages and are looking for more, according to the National Security Archive.

But the Bush White House also indicated it was searching not for e-mail messages covered by the Presidential Records Act, but only for those covered by the Federal Records Act. Facciola ordered the White House to search for both types of e-mail in an emergency order Thursday. 

"I have always begun with the premise that, as just indicated, the emails that are said to be missing are the very heart of this lawsuit and there is a profound societal interest in their preservation," Facciola said. "They are, after all, the most fundamental and useful contemporary records of the recent history of the President’s office."

Facciola is making a point that rings true no matter who is in the White House. Records like these are crucial to understanding the decisions the government makes; access to them will help enable everyone to better hold government accountable for its actions. 

CREW general counsel Anne Weismann said her organization is concerned about the records related to its suit for Secret Service visitor logs. The underlying dilemma for her case and the others is that when Obama takes office, all presidential records are sent to the National Archives, where they must be organized and sorted before they can be released to the public in response to Freedom of Information Act requests. That process can take years, and the Bush Administration has created more records than any of its predecessors.

“The need varies depending on the case, but we’re just trying to preserve the status quo,” Weismann said. “In many case we’re willing to let the documents go, but if they’re going to go, we just want to make sure there’s a chain of custody, preservation and accessibility.”

Hopefully, the new Obama administration will be more transparent — as the incoming president has frequently promised. How his administration treats these ongoing suits will offer insight into how seriously his administration will take its own record-keeping responsibilities.