According to the United States Automated Records Management System, it saved emails at the White House from 1994 to 2002. Perhaps due to the burgeoning use of email, or a desire for privacy, in 2003 the Bush Administration stopped saving the tens of thousands of emails that were sent and received by White House staff. Much of that email is probably spam or personal in nature, some may even be privileged communications between spouses. All of it became burdensome to manage, sort through and retrieve for the countless requests for information made on the government.

But a “watchdog” group, the Citizens for Responsibility and Ethics in Washington, saw this issue differently. So did the National Security Archive which, despite its official-sounding name, is actually a private group. Both sued the Bush Administration to force it to recover unsaved emails and also to establish an electronic management system that would preserve and enable retrieval of emails going back to 2003.

These groups felt there was a heightened sense of urgency in recovering the “missing” emails as the clock wound down on the tenure of the Bush Administration at the White House. They hoped for a court ruling to preserve White House records “before they get carted off or destroyed as the current administration packs its bags to leave,” declared an attorney for the National Security Archive.

If this were a conservative lawsuit against the Clinton or Obama Administrations, then one would not expect it to get past square one. Most lawsuits like this are abruptly thrown out for lack of standing. How is anyone specifically injured (a requirement to get legal standing) by a failure to preserve White House emails? Moreover, even if there were sufficient standing to sue, a federal district judge lacks the authority and jurisdiction to order the Chief Executive to adopt a record-preservation policy that would require it hold onto emails.

But on Nov. 10, 2008, Judge Henry Kennedy of the D.C. District Court held that these groups do have standing to sue for preservation of emails, and he denied a motion to dismiss the case brought by the Bush Administration. Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Civ. No. 07-01707 (D.D.C. Nov. 10, 2008). https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv1707-90

Pennsylvania law allows four forms of education: public schooling, private schooling, religious schooling, and home schooling. The Court observed that the state school code is neutral on these four types of schooling, and suggests no preference for one over the others, provided educational standards are met.

Judge Kennedy found "standing" in the possibility that these groups might file Freedom of Information Act requests for the emails, and might be “injured” if the emails no longer existed. He also held that because the groups were asking for an injunction to trigger action by the attorney general to preserve the emails, the lawsuit could continue towards that goal.

National Security Archive General Counsel Meredith Fuchs was thrilled. “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.”