The White House yesterday admitted to a federal magistrate judge that it has no computer back-up tapes with data written before May 23, 2003, and that it cannot track the history of individual hard drives within the White House system that may contain missing e-mails.

The White House filing responded to an April 24, 2008, order from Magistrate Judge John M. Facciola of the U.S. District Court directing the White House to provide more precise information about e-mail customers and hard drives in use between 2003 and 2005, as a result of a lawsuit brought by the Archive in September 2007.

In its most recent statements to the court, the White House continued to claim that "emails sent or received in the 2003-2005 time period should be contained on existing back-up tapes." In her third declaration, White House Chief Information Officer Theresa Payton stated that of 438 EOP back-up tapes created between March 1 and September 30, 2003, "the earliest date on which data was written on any of the 438 tapes is May 23, 2003." Therefore, e-mails created between March and May 2003 that were improperly preserved or deleted from EOP computer systems prior to May 23 may not be recoverable from the back-up tapes.

"What is most shocking is that if anyone at the White House was deleting their e-mails during the invasion of Iraq, those e-mails are not on any back-up tapes," said Archive director Tom Blanton.

"This filing again confirms that the e-mail back-ups are spotty at best, and EOP cannot assure the court that there are back-up tapes for all components during the period when e-mails were lost or destroyed," commented Sheila Shadmand of Jones Day, counsel for the Archive.

"The White House learned in October 2003 that e-mails from the Vice President's office may not have been preserved. In October 2005, EOP first discovered that potentially millions of e-mails were missing," said Archive general counsel Meredith Fuchs. "But in May 2008, the White House still can't figure out which e-mails are lost but continues to speculate that the e-mails 'should' be on back-up tapes."

Ms. Payton also informed the court that 583 current EOP employees were working at the White House between March 2003 and October 2005, the period when at least 5 million e-mails allegedly were not preserved. The White House said it is unable to answer the court's question regarding hard drives that may contain missing e-mails, however, because "OA does not know what hard drives these 583 individuals used during that timeframe or if the hard drives are still in existence."

The White House's most recent filing comes in litigation brought by the National Security Archive against the Executive Office of the President and the National Archives and Records Administration to preserve and restore missing e-mail federal records. A chronology of the litigation is available on the Archive's Web site. The suit was filed on September 5, 2007; a subsequent virtually identical lawsuit filed by Citizens for Responsibility and Ethics in Washington has been consolidated with the Archive's lawsuit.