With lawsuit settled, timetable for release of Bush e-mails is tricky

Now that the Obama administration has agreed to settle a lawsuit over the presidential record-keeping practices of the George W. Bush administration, what happens to the millions of additional e-mail messages from the Bush presidency that computer technicians have recovered?

When the records will be available to the public — as is the case with all records from outgoing administrations — depends on whether the communication is considered a federal or a presidential record under federal law. Records covered by the Presidential Records Act (PRA) – which covers records from the president, vice president and immediate staff — cannot be released to the public for five years, at least.

The Federal Records Act applies to records that are not considered presidential records; federal records can be obtained through Freedom of Information Act. requests.

The George Washington University National Security Archive and Citizens for Responsibility and Ethics in Washington agreed on Dec. 14 to settle ongoing litigation that involved millions of Bush-era e-mail messages. That litigation, originally filed in September 2007, alleged that the Bush administration violated a federal records law by not recovering, restoring and preserving millions of electronic communications and by not establishing what they considered an appropriate electronic records archiving system.

The groups also sued the National Archives and Records Administration (NARA), which is responsible for long-term preservation of federal and presidential records.

Meanwhile, the PRA requires that presidential records from an outgoing administration be sent NARA for sorting. After five years, people can request access to some types of records. However, Meredith Fuchs, general counsel for the National Security Archive, said although some communications could be released in five years, typically those records don’t involve key presidential decisions.

Fuchs said the president whose administration created the records can extend the protection from the public release of records that involve confidential communications for up to 12 years. Even after that, however, Fuchs said some presidential records could still be withheld for national-security and privacy reasons.

However, Fuchs said through an investigation or a subpoena records can be accessed. She also said the Obama administration can access the records.

The groups say that as a result of an e-mail restoration process pursued during this lawsuit, the government found, sorted and properly categorized 22 million more emails than they could find in late 2005. Fuchs said these messages have already been sorted as presidential or federal records.

In addition, Fuchs also said there have been 21 additional days' worth of e-mail that have been restored and sorted as presidential and federal records. Forty additional sample days of e-mail that have been recovered can be sorted into federal and presidential records, she said. That recovery process began during the Bush administration. The Obama administration has also agreed to restore an additional 33 days of e-mail, and those also can be sorted.

Under the agreement, the e-mails restored from the back-up tapes will be prepared for ingestation by NARA.