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A federal district court judge in Washington D.C. just dealt a setback to an organization looking for answers about missing White House emails.

Judge Colleen Kollar-Kotelly dismissed the Freedom of Information Act (FOIA) lawsuit by Citizens for Responsibility and Ethics in Washington (CREW) after determining that the target of the suit, the Office of Administration for the Executive Office of the President, did not fit the definition of an "agency" that was required to comply with the FOIA suit.

The suit arose after reports began circulating about shoddy archiving practices and missing backup tapes for the White House email system. Allegedly missing from White House backup systems are all emails from the period immediately preceding the start of the Iraq War and emails from the office of the Vice President during the early days of an investigation into the outing of a CIA agent. The Vice President's chief of staff, I. Lewis "Scooter" Libby, was eventually convicted of the crime, but President Bush commuted his sentence.

Two organizations, CREW and the National Security Archive, sued the Executive Office of the President to force it to recover missing emails and institute a more effective backup system. CREW also filed FOIA requests in April 2007 with the Office of Administration seeking the release of all records related to an analysis that the OA conducted in 2005 pertaining to weaknesses in the EOP's process for retaining email.

After receiving no response to the FOIA request, CREW filed a suit in federal court in May 2007 to force the release of the information. After a year of legal back-and-forth, the judge finally dismissed the case on June 16. CREW filed its intent to appeal the decision on the same day.

Essentially, the judge determined that the OA didn't have any substantial independent authority and existed only to assist and advise the President, which excluded it from the definition of an agency. Moreover, the judge found that the nature of the delegated authority that the OA did possess was dissimilar to that of other EOP divisions that courts have subjected to the FOIA.

What's interesting is that the OA considered itself an agency until August 21, 2007 and conducted itself accordingly when responding to FOIA requests. The OA publicly changed its story for the first time in a filing in this case.

Regardless of how the OA had previously operated, however, the judge declared it was not, and never had been, subject to the requirements of the FOIA. Thus, CREW's lawsuit had no legal basis, even though it was filed before the OA switched its line on its agency status.

As mentioned before, CREW has already filed a notice of appeal, so this ruling won't be the final word on the FOIA request.

Nor will it be the final word on the missing White House emails. The other lawsuit seeking to force the EOP to recover missing emails and change its data retention policy is still winding its way through the same court under a different judge. ®

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