Friday’s court filing by the White House came in response to an order issued by U.S. Magistrate Judge John Facciola last week demanding that the White House show cause why it should not be ordered to create and preserve a “forensic copy” of emails from individual hard drives. Facciola entered the order in part because the White House admitted that it did not preserve back-up tapes prior to October 2003.
Citizens for Responsibility and Ethics in Washington and George Washington University’s National Security Archive sued the Bush administration last year alleging the White House violated the Presidential Records Act by not archiving emails sent and received between 2003 and 2005.
In documents filed with Faciolla Friday, Theresa Payton, the chief information officer at the White House Office of Administration, said the White House routinely destroyed its hard drives every three years “in order to run updated software, reduce ongoing maintenance, and enhance security assurance. So its unlikely that any lost emails would be retrieved anyway.
“And even if some older computer workstations were in use, finding them and copying their hard drives with the hope that the residual data contains relevant e-mail information would create an ‘awfully expensive needle to justify searching a haystack,’” a separate court filing the White House made Friday says.
“Even if computer workstations used during the relevant time period are identifiable and locatable, making “forensic copies” (as that term is defined by the Court) of the workstations that may or may not contain residual data of emails would impose a
significant burden on OA,” added Payton’s affidavit. “As I understand it, an Order requiring defendants to make a copy of all active data on workstations containing profiles from the relevant time period would require hundreds of hours of work by... staff and management personnel. Such an effort would inevitably divert significant resources from the [Office of the Chief Administration Officer] functions and projects relating to core administration operations. The precise duration of the procurement process, as well as costs associated with that process, are not presently knowable, but they must be expected to be substantial given the sensitivity and significance of such a project.”
“Put simply, plaintiff cannot justify its request that [the Office of the Chief Information Officer] and [Executive Office of the President]... incur significant time and resource expense on the mere possibility (however unlikely) that some useful material may be restored,” the White House’s filing states. “Because the allegation of missing e-mail from archives is unconfirmed, because the allegation of missing e-mails from back-up tapes is conjectural, and because the computer workstations are unlikely to house significant, if any, relevant material the costs of a forensic copy process would far outweigh any speculative benefits.”
That line of reasoning appears contradictory on several fronts.
First, an internal investigation undertaken by officials in Payton’s office concluded that computer experts could not locate a single email from the office of Vice President Dick Cheney between September 30, 2003 and October 6, 2003—the week when the Department of Justice launched an investigation into the Plame Wilson leak and set a deadline for administration officials to turn over documents and emails to federal investigators that contained any reference to her or her husband, former Ambassador Joseph Wilson.
Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 where emails could not be located in either Cheney’s office or the Executive Office of the President. Finally, Payton admitted in January that the White House “recycled” its computer back-up tapes until October 2003, which makes it much more difficult to retrieve emails.
Payton maintains that while emails may have been deleted or “recycled” they can still be recovered.
At a hearing last month before the House Oversight and Government Reform Committee, Payton said she felt "very comfortable" that her office would be successful in recovering lost emails from "disaster recovery backup tapes." However, her office has so far not attempted to recover the electronic communications.
The internal investigation conducted by more than a dozen staffers in Payton’s office showed that there were at least 473 days of missing emails led CREW to file a federal court motion earlier this month asking that Payton be held in civil contempt for knowingly submitting false, misleading, and incomplete testimony in an affidavit filed with a federal court in January.
In her sworn affidavit filed January 15, Payton said one employee in the Office of Administration—Steve McDevitt, who worked with Payton from 2002 to 2006—conducted the internal probe and the findings are in dispute. She added that she was unaware whether emails were properly archived.