WASHINGTON – A federal appeals court gave a chilly reception Friday to a private group trying to force the Bush administration to surrender records detailing problems with the White House's e-mail system.

The problems may have resulted in the loss of millions of electronic messages.

During a half-hour-long argument, three federal appeals court judges suggested that the Freedom of Information Act does not apply to the records, a signal that the court might allow the documents to remain confidential.

The judges seemed dismissive of the argument that the White House office containing the records has responded to other FOIA requests for many years, until it was sued in the e-mail controversy.

Judge Thomas Griffith suggested the White House's previous position is not legally significant.

“Why does it matter? ... They made a mistake,” Griffith told Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington.

For nearly three years, the White House has revealed little about the difficulties with its e-mail system. The problems first surfaced during the investigation of the leak of Valerie Plame's identity as a CIA employee, when prosecutors sought e-mails from the office of Vice President Dick Cheney.

Lawsuits filed by private groups and testimony at a congressional hearing in February disclosed that the White House had failed to install automatic archiving for its e-mail. Instead, the White House stored electronic messages onto computer servers in what was to have been a stopgap measure but continued for at least five years.

In June, the White House drafted a document that calls for an attempted recovery effort for as many as 225 days worth of e-mail. The Associated Press obtained a copy of the draft document in August.

The White House refuses to say whether it has hired a contractor to undertake such a recovery effort, which would involve trying to pull copies of any missing messages from tens of thousands of computer backup tapes.

Citizens for Responsibility and Ethics in Washington sued the White House Office of Administration a year and a half ago, seeking documents about the e-mail problems.

A federal judge agreed with the White House that the Office of Administration is not subject to the FOIA, and CREW appealed.

The other judges hearing the appeal were David Sentelle and A. Raymond Randolph. Sentelle is an appointee of President Ronald Reagan; Randolph, an appointee of President George H.W. Bush; and Griffith, an appointee of President George W. Bush.