A federal judge today sided with the Bush administration in a Freedom of Information Act (FOIA) lawsuit related to missing White House e-mails. Judge Colleen Kollar-Kotelly, who is probably most familiar to Ars readers for her role in the Microsoft antitrust case, held that the White House's Office of Administration was not a federal agency as that term is defined by the FOIA and was therefore not obligated to respond to FOIA requests.

The ruling represents a setback for the plaintiff, Citizens for Responsibility and Ethics in Washington (CREW), which was also behind the White House e-mail lawsuit we covered in April. That lawsuit was heard by a different judge, was directed at a different federal agency, and was filed under different federal statutes: the Federal Records Act and the Presidential Records Act. The White House has denied wrongdoing in that case, and the case is still being litigated.

In contrast, today's decision may represent the end of CREW's efforts to unearth records about the White House's e-mail problems under FOIA. CREW was seeking internal documents that could reveal the extent of the missing e-mail problem. Not surprisingly, the Bush administration has been reluctant to release those potentially embarrassing records. Indeed, after more than a quarter-century of complying with FOIA requests, last year the Office of Administration announced that it had re-considered its status under FOIA and would no longer comply with FOIA requests.

FOIA applies to executive branch entities with "substantial independent authority," and it specifically excludes the president's personal staff and advisors. For example, the executive residence staff, which does cooking and cleaning for the president and his guests, is not subject to FOIA requests. Similarly, purely advisory bodies like the Council of Economic Advisors and the National Security Council are exempt from FOIA because they simply provide advice and administrative support to the president, and wield no independent authority.

The Office of Administration provides administrative support to the executive offices of the president and vice president. It offers a variety of clerical, administrative, and technical services, including—most crucially—e-mail services. In 2007, CREW made a demand under FOIA that OA produce internal documents concerning the extent of its e-mail problems. Rather than producing the requested materials, the Office of Administration reversed its decades-long policy of complying with FOIA requests. CREW sued, and OA told the courts that due to its proximity to the president and its lack of policymaking authority, it was not an "agency" as that term is definied by FOIA, and that it was therefore exempt from information requests.

In today's decision, Judge Kollar-Kotelly bought this argument. Acknowledging that it was a close case, she concluded that OA was more like the White House housekeeping staff than the full-blown federal agencies that FOIA was intended to cover. In a 29-page opinion, she rejected CREW's arguments and dismissed its lawsuit.

The decision is a victory for the White House, but CREW contends that the White House has little to crow about. "The fact is, until CREW asked for documents pertaining to this problem, the Office of Administration routinely processed FOIA requests," said executive director Melanie Sloan. "Only because the administration has so much to hide here, has the White House taken the unprecedented position that OA is not subject to the FOIA." She vowed to appeal the decision.

But even if an appeals court agrees to hear the case, CREW is now in a race with the clock as much as it is in a battle with the Bush Administration. With barely seven months before the next president takes the oath of office, the Bush administration should have little trouble running out the clock on the e-mail dispute. The task of cleaning up the White House e-mail mess will almost certainly fall to either John McCain or Barack Obama.