For Immediate Release: November 12, 2008

Obama administration can act quickly to restore openness, according to new transparency proposals

Dozens of groups sign on to recommend openness from Day One

For more information contact: Thomas Blanton/Meredith Fuchs - 202/994-7000
LINK

Logo of the Web site of President-elect Barack Obama
Washington D.C., November 12, 2008 - The Obama administration can act quickly after taking office in January to reverse the secrecy trend of the last eight years and restore openness in the executive branch, according to a set of new proposals posted online today by the National Security Archive. More than 60 organizations joined the recommendations, which call on President-elect Obama to restore efficiency and openness to the Freedom of Information Act process, reform the classification system to reduce overclassification and facilitate greater declassification, and ensure that presidential records are handled in accordance with the law and Congress’ intent.

“President-elect Obama can make a difference on Day One in the way his administration relates to the public,” explained the Archive’s general counsel Meredith Fuchs. “Secrecy got out of control in the last eight years, but a few focused directives will go a long way towards reopening the government.”

A diverse coalition of groups convened by the National Security Archive developed the three proposals. If adopted, the recommendations would establish the needed framework for accountability, integrity, and greater effectiveness in the federal government. The proposals call on the president-elect to take the following actions during his first days in office:

Issue a memorandum on the Freedom of Information Act that establishes a policy of maximum possible public disclosure of government records and directing an attorney general memo that reinstitutes the presumption of openness under FOIA, calls on agencies to use technology to engage with and inform the public, and commits to creating a more collaborative and less adversarial relationship with the public on issues involving access to information. Read the FOIA Proposal.

Revoke President Bush’s executive order on the Presidential Records Act, which undermined the PRA by purporting to create new constitutional privileges for the family members and descendents of former presidents and for former vice presidents; commit to working with NARA and Congress to ensure necessary oversight for the transfer and processing of the Bush presidential records; and establish a policy for the new administration to preserve all presidential records of administrative, historical, informational, or evidentiary value. Read the PRA Proposal.

Issue a presidential directive rejecting prior abuses of the classification system and tasking the relevant executive branch agencies to develop a new executive order on classification that will reduce overclassification, add internal mechanisms to prevent classification abuses, ensure consideration of the public interest throughout the lifecycle of classified information, and improve the declassification process and information sharing. Read the Classification Proposal.

The Archive actively participated in the development of a broad set of openness recommendations, released yesterday and spearheaded by non-profit organization OMB Watch. The new report, Moving Toward a 21st Century Right-to-Know Agenda, provides recommendations for the new president and Congress to restore openness and enhance transparency through the use of 21st century technologies. Other transparency proposals, such as one released recently by the Sunshine in Government Initiative, demonstrate a growing consensus among a wide range of groups that government openness is a critical action area for the new administration.

Bush E-Mails May Be Secret a Bit Longer
Legal Battles, Technical Difficulties Delay Required Transfer to Archives
By R. Jeffrey Smith, Washington Post Staff Writer
Sunday, December 21, 2008; A01
LINK

The required transfer in four weeks of all of the Bush White House's electronic mail messages and documents to the National Archives has been imperiled by a combination of technical glitches, lawsuits and lagging computer forensic work, according to government officials, historians and lawyers.

Federal law requires outgoing White House officials to provide the Archives copies of their records, a cache estimated at more than 300 million messages and 25,000 boxes of documents depicting some of the most sensitive policymaking of the past eight years.

But archivists are uncertain whether the transfer will include all the electronic messages sent and received by the officials, because the administration began trying only in recent months to recover from White House backup tapes hundreds of thousands of e-mails that were reported missing from readily accessible files in 2005.

The risks that the transfer may be incomplete are also pointed up by a continuing legal battle between a coalition of historians and nonprofit groups over access to Vice President Cheney's records. The coalition is contesting the administration's assertion in federal court this month that he "alone may determine what constitutes vice presidential records or personal records" and "how his records will be created, maintained, managed, and disposed," without outside challenge or judicial review.

Eventual access to the documentary record of the Bush presidency has been eagerly anticipated by historians and journalists because the president and his aides generally have sought to shield from public disclosure many details of their deliberations and interactions with outside groups.

"We are worried," said Arnita A. Jones, executive director of the American Historical Association, which sued the White House several years ago seeking wider access to presidential records than President Bush had said in a 2001 executive order that he wanted the government to provide. "There is a context that is not reassuring," she said.

The National Archives and Records Administration is supposed to help monitor the completeness of the historical record but has no enforcement powers over White House records management practices. Speaking of the missing e-mails, Archives' general counsel Gary M. Stern said in an interview last week that "we hope and expect they all will exist on the system or be recoverable," even in coming weeks. "We can't say for sure."

White House spokesman Scott M. Stanzel said last week that "we are making significant progress in accounting for the e-mail records stored on our computer network." But he declined to say how many e-mails remain missing or to predict how long the recovery will take because the issue is the subject of ongoing litigation.

The National Security Archive, a historical research group, and Citizens for Responsibility and Ethics in Government, a nonprofit watchdog organization, filed lawsuits in September 2007 to compel the White House to preserve backup e-mail tapes. In November 2007, U.S. District Judge Henry H. Kennedy Jr. ordered White House officials to preserve such tapes and "not transfer said media out of their custody or control without leave of this court."

In the case of the vice president's records, the White House has promised a different federal judge that it will comply with a Nixon-era law requiring the preservation and transfer of all documents related to the vice president's official duties, but the coalition has drafted a filing for the court on Monday that accuses Cheney of subtly seeking to circumscribe the legal definition of what those official duties encompass to such a degree that he will be able to take home or destroy countless documents related to policymaking that historians want to see.

Anne Weisman, the counsel for the plaintiffs, called Cheney's assertion that only those records related to tasks specially assigned by Bush need to be preserved "a loophole . . . large enough to drive truckloads of documents through." It means, she said, that Cheney would not have to surrender documents related to legislation or "advice he gives the president on his own initiative and the influence he has over the president's decisions."

The scramble to find missing e-mails and copy them in a digital form that the Archives can comprehend amounts to a replay of the confusion that capped the transfer of President Bill Clinton's records at the end of his administration in 2001. Then, a series of defects in the White House e-mail archiving system led to congressional subpoenas and the administration's expenditure of $12 million to recover hundreds of missing e-mails from backup tapes. The effort was not completed until after Clinton left office.

Stanzel said the White House is also still "working to acquire" e-mails involving official government business that were transmitted by presidential aides through accounts operated by the Republican National Committee, a problem also first publicized almost three years ago. "We continue to be in communication with RNC officials about recovering official records," he said without offering details. Such records are subject to the Presidential Records Act, which requires their transfer to the Archives at noon on Jan. 20.

Thomas S. Blanton, the National Security Archive director, said controversy surrounding the last-minute handling of e-mails by retiring presidents -- including intervention by the courts -- is hardly exceptional.

Blanton wrote in a 1995 book that Ronald Reagan tried to order the erasure of all electronic backup tapes during his final week in office; the current president's father struck a secret deal with the U.S. archivist shortly before midnight on his final day in office to seal White House e-mails and take them with him to Texas; and Clinton asserted in 1994 that the National Security Council was not an agency of the government so he could keep its e-mails beyond public reach.

Blanton said last week that "the situation is exponentially worse" under the current administration because the volume of electronic records at stake from Bush's tenure is higher than in previous administrations. If some of the records are manipulated, even for a short while, he said, "the problem and the cost to the taxpayers is going to be exponentially worse, [as well as] the delay and the lag time before journalists and historians are going to be able to see this."

The transfer of some White House records officially got under way a few weeks ago with the first air shipments of documents to a leased warehouse north of Dallas, near the projected site of the Bush library, and the transport by truck of some digital records to a remote Navy research center in the mountains of West Virginia. The bullhorn used by Bush at the World Trade Center site in New York is among the objects set to go to Texas.

At the Navy base, all the electronic data are supposed to be "ingested" by a new electronic system meant to allow such efficient cataloguing, indexing and searching that millions of documents can eventually be provided to researchers and citizens online.

The system, which has been under development for a decade by Lockheed Martin and other contractors at a cost of $67.5 million, will rely on software created after the collapse of Enron, when that company's creditors demanded new tools for quickly sorting its e-mail trove to find damaging information.

But there are obstacles to gaining such ready access to files created by Bush and his appointees. Technical troubles, cost overruns and inadequate funding caused the system to be sharply scaled back at the outset, according to Archives officials and the Government Accountability Office. The result is that it will take years of work -- and an additional $70 million -- to put in place the features that the Archives initially sought.

"The ingestion of Bush data has just begun," said Archives spokeswoman Susan Cooper, adding that she is unsure how smoothly it has gone.

The Archives hopes to finish much of its work on the new archival system by 2013, when by law the Bush White House records can begin to be accessed under the Freedom of Information Act.

But Archivist Allen Weinstein and other officials say they may still face a serious shortage of trained staff: Out of the Archives' 3,000 employees at 40 facilities, only a few are assigned to process requests by historians, citizens and others -- 10 at the Reagan library, eight at the first Bush library and 10 at the Clinton library.

The result has been a steady growth in delays for processing data requests, from a wait of a year and a half in 2001 at the Reagan library to a current wait of six and a half years. The new Bush library is slated to have 18 archivists.

"I tried -- half-whimsically -- to ban the word 'backlog' in favor of discussing NARA's 'surplus' of documents, which sounds better but which remains today an intractable problem," Weinstein said in a recent speech.

For Immediate Release:
November 10, 2008

Court Rejects White House on Missing E-mails

Judge Kennedy sides with Archive and CREW on ability to sue
For more information contact:
Meredith Fuchs - 202/994-7000
John B. Williams/Sheila L. Shadmand [Jones Day] - 202/879-3939
LINK

Washington D.C., November 10, 2008 - A court ruled today that the National Security Archive may proceed with its effort to force the White House to recover millions of Bush Administration Executive Office of the President (EOP) e-mail records before the presidential transition. Rejecting the government’s motion to dismiss the Archive’s lawsuit, the Court ruled that the Federal Records Act permits a private plaintiff to bring suit to require the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records.

“This ruling gives the public a clear voice in demanding preservation of our nation's history, even when that history is created at the White House,” explained Sheila Shadmand, an attorney at Jones Day who is representing the Archive. “We can now give positive action to that voice and protect these records before they get carted off or destroyed as the current administration packs its bags to leave. In that sense, the ruling itself is as historical as the records it will protect.”

“This is a major victory for the public interest in accountability at the White House,” added Archive General Counsel Meredith Fuchs. “Through this lawsuit we have preserved over 65,000 computer backup tapes. This decision means those tapes will survive the end of the Bush Administration so that Congress, the courts, and eventually the public will be able to learn about the decision-making that took place over the last 8 years.”

The National Security Archive originally filed its case against the Executive Office of the President and the National Archives and Records Administration to preserve and restore missing e-mail federal records in September 5, 2007. A subsequent lawsuit filed by Citizens for Responsibility and Ethics in Washington has been consolidated with the Archive's lawsuit. A chronology of the litigation is available here.

White House Email Chronology