updated 5/19/2009 12:49:06 PM ET 2009-05-19T16:49:06

A federal appeals court ruled Tuesday that the office that has records about millions of possibly missing e-mails from the Bush White House does not have to make them public.

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The appeals court in Washington ruled that the White House Office of Administration is not an agency subject to the Freedom of Information Act, allowing the White House to keep secret documents about an e-mail system that has been plagued with problems.

During its first term, the Bush White House failed to install electronic record-keeping for e-mail when it switched to a new system, resulting in millions of messages that could not be found. The Bush White House discovered the problem in 2005 and rejected a proposed solution.

A group known as Citizens for Responsibility and Ethics in Washington sued to get documents about the office's electronic record-keeping, including reports analyzing system problems, plans to find the missing e-mails and create an improved system and records of any retained messages.

"Only operational and administrative tasks"
In response to court orders in the case, the White House disclosed that it has located nearly 3,500 pages of documents about problems with its e-mail system. But the Bush administration argued in this case for the first time that the office's records are not subject to public disclosure, even though it had responded to hundreds of other FOIA requests in the past decade and even included instructions on its Web site for filing them.

A lower court sided with the Bush administration last June, and Tuesday's opinion upheld that order.

"We conclude that the Office of Administration is not (subject to FOIA requests) because it performs only operational and administrative tasks in support of the president and his staff and therefore, under our precedent, lacks substantial independent authority," the three-judge panel said in its opinion.

President Jimmy Carter created the Office of Administration in the late 1970s as part of the Executive Office of the President. It is responsible for such duties as personnel management, data processing, records, and office services like printing, supplies and mail.

Obama sides with Bush
The appeals court decision was made unanimously by Judges David Sentelle, A. Raymond Randolph and Thomas Griffith. All were Republican appointees — Sentelle by Ronald Reagan, Randolf by President George H.W. Bush and Griffith by his son, President George W. Bush.

The case was argued before the judges in November, before President Barack Obama took office. But the Obama administration is siding with the previous administration in trying to kill another lawsuit that seeks to recover any missing e-mails.

The Bush White House eventually said that it located 14 million e-mails that were misplaced and that the White House had restored hundreds of thousands of other e-mails from computer backup tapes. But two groups — Citizens for Responsibility and Ethics in Washington and the National Security Archive — filed a lawsuit against the Executive Office of the President in February arguing that large amounts of e-mail may still be missing, and that the government must undertake an extensive recovery effort.

The groups expressed disappointment that Obama's Justice Department asked that the suit be dismissed after Obama promised greater transparency in government.

Anne Weismann, CREW's chief counsel, said the group is disappointed in the ruling but it is negotiating with Obama's White House to get access to the Office of Administration's documents anyway.

"Every president except for George W. Bush has treated OA as an agency subject to the FOIA and we are counting on President Obama to do the same," she said in a statement.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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