It is unclear when the "refresh policy" was implemented or who was responsible for drafting it. Neither Payton nor her aides responded to repeated requests for comment.
Susan Cooper, a spokesman for the National Archives, said in an interview that her agency does not have any power to enforce the White House to comply with the Presidential Records Act.
"One thing you have to remember the key thing to remember about presidential records is that it doesn't become ours until the end of the administration," Cooper said. "The National Archives does not have any say or legal input until the end of a president's term. It's up to the president to decide how he manages his records. However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department."
Susan Cooper, a spokesman for the National Archives, said in an interview that her agency does not have any power to enforce the White House to comply with the Presidential Records Act.
"One thing you have to remember the key thing to remember about presidential records is that it doesn't become ours until the end of the administration," Cooper said. "The National Archives does not have any say or legal input until the end of a president's term. It's up to the president to decide how he manages his records. However, federal records are a different story. We have input into that immediately. If we believe a federal agency is violating the Federal Records Act we will write a letter to the agency and ask for an explanation and if necessary we will refer the case to the Justice Department."
Allen Weinstein, Archivist of the United States, said the National Archives did write a letter to the White House last May when reports about the extent of the missing emails began to surface.
Cooper indicated that the National Archives has no intention of referring the matter to the Justice Department.
However, Terry Sweeney, a columnist with InformationWeek, believes that is where the case should end up.
In a column http://www.informationweek.com/blog/main/archives/2008/03/real_tossers.html# published Monday, Sweeney said Payton's disclosure involving the destruction of hard drives "sounds improvised-very lately improvised."
"Normally, a reasonably sensible storage professional makes sure all necessary data was properly copied," Sweeney wrote. "And normally new applications -- whether it's an e-mail server or the backup system for it are tested and re-tested before anything gets destroyed. But this situation isn't normal, and the story behind the story keeps changing, or getting added to, like one of those serial chain letters that clutter your inbox. Earlier on, I was willing to give the White House and [chief information officer] Theresa Payton the benefit of the doubt about this mess. My suspension of disbelief about this is officially suspended."
Georgetown University's National Security Archive, who, along with government watchdog group Citizens for Responsibility and Ethics in Washington sued the White House last year. The watchdog organizations allege Federal Records Act violations and have asked a federal court judge to order the Bush administration to install an effective archive system and retrieve the lost emails.
In a court document filed late Tuesday responding to the White House's show cause order, the National Security Archive said that Facciola should order the White House to immediately make a "forensic copy" of individual hard drives or "there is a high likelihood that email data will be obliterated."
"That the [Executive Office of the President] has destroyed hard drives from the relevant period, does not monitor or track its own hardware, and has no guidelines in place for the retention or preservation of other media devices further affirm the need for this court to ...protect these sources of media that the [Executive Office of the President] itself has chosen to callously neglect," the NSA's response to the White House's show cause order says.
In a sworn declaration accompanying the NSA's court filing, Al Lakhani, Managing Director at Alvarez & Marsal Dispute Analysis and Forensic Services, said it is highly unlikely that "all emails sent or received between March 2003 and October 2005 are not on backup tapes" as Payton claims.
However, the emails can be recovered if copies of the hard drives are immediately made, Lakhani said, adding that it would cost between $50 and $250 and take up to 30 minutes, far lower than the $15 million Payton projected.
"Leaps in forensic copying and imaging technology have rendered nominal the cost and burden of preserving media of the type envisioned by the court," the NSA's federal court filing says.
Payton, however, is increasingly coming under fire for the rationale she has come up with to explain the loss of the emails.
CREW filed a federal court motion earlier this month asking that Payton be held in civil contempt for knowingly submitting false, misleading and incomplete testimony in an earlier affidavit filed with a federal court on Jan. 15
In that affidavit, Payton said she was unaware whether e-mails were properly archived.
CREW said Payton's responses in her affidavit are "false and appear designed to mislead the court into believing that both discovery and any additional interim relief are unnecessary."
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