Courts still dealing with Bush records policies

Hannah Bergman | Freedom of Information | Feature | January 21, 2009

Even as President Barack Obama’s new administration takes charge of the White House this week, several disputes over the Bush Administration's records are far from over.

On Monday, U.S. District Court Judge Colleen Kollar-Kotelly issued a ruling in a key records case the watchdog group Citizens for Responsibility and Ethics in Washington brought against then-Vice President Dick Cheney.

In its suit CREW argued that Cheney’s office was not fulfilling its obligations to preserve records under the Presidential Records Act. In response, Cheney’s office made various arguments that Kollar-Kotelly characterized as inconsistent.

"Defendants were unable (or unwilling) to maintain consistent factual positions, and their course of conduct seemed to reflect their belief that they needed to explain their positions only on a 'need to know' basis," she wrote. 

Kollar-Kotelly ruled on Monday that the vice president’s records retention policies are subject to judicial review under the Presidential Records Act. However, she also held that CREW hadn’t been able to show the vice president wasn’t complying with the law’s obligations.

Kollar-Kotelly noted several statements made by officials from Cheney’s office in response to questioning by CREW attorneys that indicated the vice president was complying with his duties.

She concluded, “The Court expects that all of the Defendants will, in good faith, comply with the representations that their officials have made, by way of testimony, in this case.”

Kollar-Kotelly also said that CREW could not proceed with its suit against the National Archives and Records Administration because the Presidential Records Act doesn’t give the Archives any true oversight of the vice president’s records.

“The Court is left with the undeniable conclusion that Congress vested almost no authority in the Archivist and NARA over Vice-Presidential records during a Vice President’s term in office. If such a statutory scheme gives Plaintiffs pause, their redress is to Congress and not this Court,” Kollar-Kotelly wrote.

Separately, in the ongoing lawsuit over access to missing White House e-mail from early in Bush’s tenure, the former administration continued to argue that a federal court has no power to order the preservation of records under the Presidential Records Act, The Washington Post reported.

Magistrate Judge John M. Facciola had done just that, ordering the Bush White House to preserve the records, but the Justice Department argued his order applied only to e-mail records covered by the Federal Records Act, not the Presidential Records Act.

Facciola had issued a new order saying both types of records were covered. The latest filing by the Justice Department was a request to reconsider that order. CREW has said it is seeking the preservation of the administrative record in the case so that it can continue to be litigated in court after the Bush Administration records are out of the White House and sent to the Archives.