In the latest salvo between the White House and the federal courts over preservation of computerized government records, an appellate panel told the White House on Friday that it cannot destroy the information unless it first makes backup copies.
The White House had no comment on the ruling, but earlier President Bush’s press secretary, Marlin Fitzwater, said: “We have not destroyed any tapes and we don’t intend to.”
At the heart of the dispute is an effort by White House officials to destroy the in-house notes and memoranda written on computers and dispatched electronically to other staff members during the four years of the Administration. Much of the evidence that was found in the Iran-Contra investigation came from a review of such computer files compiled in the Ronald Reagan White House.
In seeking permission to destroy the records, including those of the National Security Council staff, the White House had argued that the computerized memoranda and other electronically recorded documents should be erased to give the incoming Clinton White House a “clean slate” and not “disrupt the orderly transition of power” by handing to the new team an overloaded computer system.
That argument was rejected Thursday by U.S. District Judge Charles Richey, and the White House appealed his ruling on Friday to a three judge panel in the U.S. Appeals Court, headed by Chief Judge Abner Mikva.
Only partially overturning the lower court’s prohibition on the destruction of material that may be stored on the personal computers in the White House, the appellate court said: “Defendants may remove, delete or alter such information as they see fit, so long as the information is preserved in identical form, pending the disposition of this appeal.”
The backup tapes must “faithfully replicate all information removed, deleted or altered, including message logs, user directories and any other information contained in the original system,” the court ruled.
Last week Richey ordered that the White House and the archivist of the United States take steps to make sure that these so-called non-presidential records are preserved. Official records involving the President himself are not involved in the dispute.
Tossing aside the White House argument that the material should be purged to free space for the system’s next users, Richey said: “As a practical matter, one does not have to know much about computers to know that saving this information is not going to bring the government to its knees.”
The dispute arose after the National Security Archive, a private research organization that collects declassified government documents, filed a lawsuit four years ago under the Freedom of Information Act to protect the material. The group maintained that while many of the electronic messages may be trivial, some could help reconstruct a record of government activity that does not exist elsewhere.
In opposition, the Bush Administration argued that the order “threatens to deprive President Bush of important confidentiality protections” and would burden the incoming Clinton Administration with additional record-keeping requirements. In addition, it argued that the records covered by the order are often “intermingled” with presidential records that are exempt from judicial protection.
In a decision reached in 1991, the U.S. Court of Appeals found that the courts have no authority over the documents considered to be strictly presidential records, which are generally considered those papers prepared by the President’s staff with the purpose of advising or assisting him.