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Judicial Watch • JW v Dept State 1242 Rice talking points Hillary emails

JW v Dept State 1242 Rice talking points Hillary emails

JW v Dept State 1242 Rice talking points Hillary emails

Page 1: JW v Dept State 1242 Rice talking points Hillary emails

Category:Clintons

Number of Pages:9

Date Created:March 16, 2015

Date Uploaded to the Library:March 17, 2015

Tags:Vaughn, Susan Rice, Emails, motion, hillary, email, order, Hillary Clinton, Secretary, Benghazi, clinton, plaintiff, State Department, White House, conference, records, FOIA, department, office, court, EPA


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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
DEPARTMENT STATE,
Defendant.
Civil Action No. 14-1242 (RCL)
PLAINTIFF MOTION FOR STATUS CONFERENCE
AND SHORTEN DEFENDANT TIME FILE ANY
RESPONSE OPPOSITION WITHIN FOUR BUSINESS DAYS
Plaintiff Judicial Watch, Inc., counsel, respectfully requests status conference this
matter soon possible avoid further undue delays, prejudice and potential spoliation.
This case was filed under the Freedom Information Act FOIA which agency emails
Secretary State Hillary Clinton and that her staff were requested.
Judicial Watch only
recently learned, through startling public reports, that the Department State response was
compromised.
Because supplemental document production due short order and time the essence with respect any potential spoliation, Judicial Watch requests that its motion
reviewed expedited basis and for any opposition status conference filed within four
business days this motion.
March 23, 2015.
All counsel are available for status conference the week further grounds thereof, Plaintiff submits the following.
MEMORANDUM LAW
This lawsuit arises out FOIA request for records, including emails, from the
State Department Office the Secretary concerning the talking points provided U.S.
Ambassador Susan Rice about the September 11, 2012 attack the U.S. consulate Benghazi.
Compl.
Judicial Watch requested email communications from the Office the
Secretary with White House officials and officials any other federal agencies about the talking
points given Ambassador Rice.
The request seeks records during Secretary Clinton tenure the U.S. Secretary State.
Because Secretary Clinton was the center the State Department official
statement blaming the online video for the attack Benghazi, her emails and those her staff
within the Office the Secretary about the talking points given Ambassador Rice are clearly
responsive Judicial Watch request. March 2015, Judicial Watch learned through alarming public report
the New York Times that Secretary Clinton used least one non- state.gov email account
exclusively conduct official government business during her entire tenure the Secretary
State. also was reported that Secretary Clinton stored these records non-U.S.
government server her home Chappaqua, New York.
She unilaterally determined some
time 2014 which these emails were official government records, and only returned
approximately 55,000 printed pages these records the State Department about
Ambassador Rice and Secretary Clinton issued statements after the attack falsely blaming inflammatory video
posted the Internet for the attack. The administration knew this account was false. Within moments the
attack, Secretary Clinton senior staff knew terrorist attack was underway and that al-Qaeda-affiliated terrorist
group had claimed credit for it. See http://www.nationalreview.com/corner/414500/hillary-clintons-top-aidesknew-first-minutes-benghazi-was-terrorist-attack-e-mails; http://usnews.nbcnews.com/_news/2012/09/16/13896494ambassador-rice-benghazi-attack-began-spontaneously?lite. fact, documents obtained prior lawsuit filed Judicial Watch against the State Department disclosed
communications between State Department and White House officials promoting the false narrative about the video.
This revelation led the appointment the congressional Select Committee Benghazi. (Judicial Watch
Dept. State, Case No. 1:13-cv-951-EGS); See http://www.judicialwatch.org/press-room/press-releases/54881/.
See Michael Schmidt, Hillary Clinton Used Personal Email Account State Dept., Possibly Breaking Rules,
the N.Y. Times (Mar. 2015), available http://www.nytimes.com/2015/03/03/us/politics/hillary-clintonsuse-of-private-email-at-state-department-raises-flags.html.
December 2014. Other senior State Department officials Secretary Clinton, including
Phillipe Reines, Deputy Assistant Secretary State for Strategic Communications and senior
advisor, Cheryl Mills, chief staff, and Huma Abedin, deputy chief staff, also reportedly
used non- state.gov email addresses with the @clintonemail.com domain conduct official
government business.
These emails are also sent and received through the non-U.S.
government server Secretary Clinton home. Such emails are quintessential agency records
subject FOIA.
The State Department failure retain and record-manage these
quintessential agency records and make them available for retrieval has compromised the
Department response Judicial Watch request.
Instead informing the Court and Judicial
Watch about this material information, the State Department engaged settlement discussions induce dismissal this FOIA lawsuit without telling Judicial Watch that did not search
Secretary Clinton emails.
Judicial Watch initiated this lawsuit July 21, 2014 because the State
Department failed provide final determination with respect the FOIA request.
5-9.
Compl.,
Pursuant the Court Scheduling Order, the State Department document production
was due November 12, 2014 and the draft Vaughn index was due December 2014.
2014 Order (ECF No. 9).
Sep. 15,
The Department stated that would produce draft Vaughn index
that the parties will position confer attempt resolve this matter without further
litigation. Def. Unopposed Mot. Vacate, 3-4 (ECF No. 8); Status Rpt., 2-3, Dec. 31,
Hillary Clinton, Statement from the Office Former Secretary Clinton (Mar. 10, 2015), available http://insider.
foxnews.com/2015/03/10/read-hillary-clintons-office-releases-qa-email-controversy.
See e.g., http://www.nytimes.com/2015/03/05/us/politics/Membership-in-clintons-email-domain-is-rememberedas-a-mark-of-status.html; http://www.washingtonexaminer.com/benghazi-committee-moves-to-obtain-privateemails-from-hillary-clintons-aides/article/2561357.
See http://www.wsj.com/articles/clinton-private-email-plan-drew-concerns-early-on-1426117692.
2014 (ECF No. 10). November 12, 2014, the State Department released its production
responsive, non-exempt, records that Judicial Watch understood complete. its letter,
the Department stated that located four (4) documents result its search the Office
the Secretary.
Sept. 15, 2014 Order (ECF No. 9); See Ex. (Letter from John Hackett,
Acting Director the Office Information Programs and Services for the State Department,
Nov. 12, 2014; Email from Robert Prince, Esq., Nov. 12, 2014). December 2014, the
State Department produced its draft Vaughn index pursuant the Court September 15, 2014
Order.
(ECF No. both instances, the State Department omitted that its search did not
include Secretary Clinton emails the Office the Secretary.
More egregiously, the State
Department omitted that Secretary Clinton had apparently just turned over 55,000 pages her
agency emails that had not been searched included the Department draft Vaughn index.
See Ex. (Email from Robert Prince, Esq., Dec. 2014).
These omissions are material and
were apparently made the process settlement discussions induce dismissal. supplemental search and document production due April 2015 solely
because Judicial Watch requested search affidavits, surprised that that the State Department
located only four responsive records none which are Secretary Clinton emails and all
which were previously produced another litigation.
No. 11); supra,
Status Report Feb. 2015 (ECF
Judicial Watch has reason believe that the State Department would
have ever disclosed that its search was compromised had Judicial Watch not asked for search
affidavits when reviewed the draft Vaughn index and limited production. March 11, 2015, the State Department finally agreed search the 55,000
pages emails turned over Secretary Clinton.
March and 11, 2015).
Ex. (Email exchange among counsel,
The State Department has repeatedly refused, however, confirm
whether its supplemental search includes non- state.gov email addresses other State
Department officials within the Office the Secretary.
Id.
(Counsel conferred telephone March 12, 2015, but the State Department refused disclose any relevant information about
the current search other than the fact that the 55,000 pages are being searched.).
Neither the
Court nor Judicial Watch should have rely public reports understand what efforts are
being undertaken produce all responsive, non-exempt, records response the FOIA request
and remedy any potential spoliation. immediate status conference prudent light
these extraordinary circumstances and necessary avoid further spoliation. will also save
the Court and the parties time and resources address these issues while supplemental search being conducted.
The State Department had obligation under the Federal Records Act
properly store[], preserve[], [and make] available for retrieval records its official functions. FAM 443.1(a); U.S.C. 3101 seq.
Agencies must implement records maintenance
program that complete records are filed otherwise identified and preserved, and records
can readily found when needed. 51020, National Archives and Records
Administration (NARA) 1222.34 (2009). fact, the obligation the head every
federal agency so. See, e.g., American Friends Service Committee Webster, 720 F.2d
29, (D.C. Cir. 1983).
Each head agency develop program for records
management, including provisions for cooperation with the Archivist, applying standards,
procedures, and techniques. Id. (quoting U.S.C. 3102(2)).
Since 1995, this obligation has applied emails.
Moreover, heads federal
agencies must prevent the unlawful accidental removal, defacing, alteration destruction
records, and implement and disseminate policies and procedures ensure that the records are
protected against unlawful accidental removal, defacing, alteration and destruction.
U.S.C. 3105-06; 51029, NARA 1220-1235, 1230.10, 1230.12 (2009).
Records,
regardless format, are [to be] protected safe and secure environment and removal
destruction carried out only authorized records schedules. 51017, NARA,
1220.32(e).
Removal means transferring otherwise allowing record leave the
custody Federal agency without the permission the Archivist the United States. 51029, NARA, 1230.3(b).
Secretary Clinton plainly violated her own legal obligations the head the
State Department.
Id., U.S.C. 2071 Whoever willfully and unlawfully removes with
intent takes and carries away any record paper, document any public office shall fined under this title imprisoned both. U.S.C. 3105-06.
Government emails
backed-up non-U.S. government server located her property were clearly outside the
custody the State Department.
(2011 ed.).
Doing this was misconduct.
Id., see also U.S.C. 1362
Malfeasance such this should not permitted circumvent the letter and spirit the law, including FOIA.
10.
The State Department cannot claim was unaware the Secretary failure
properly store and records-manage.
Not only should knowledge this failure imputed
See e.g. Geoff Earle, Ex-FOIA Official Calls Hillary Email Justification Laughable, N.Y. Post (Mar. 12,
2015), quoting Daniel Metcalfe, What she did was contrary both the letter and the spirit the law. There
doubt that the scene she established was blatant circumvention the Freedom Information Act, atop the Federal
Records Act. Daniel Metcalfe (retired) served Founding Director the Justice Department Office
Information and Privacy (OIP), one the Department forty components, responsible for the development and
dissemination FOIA policy throughout the executive branch from Nov. 1981 Jan. 2007.
the State Department through Secretary Clinton, but any State Department employee who sent
received email from Secretary Clinton which presumably would have included high
level officials must have known that they were communicating with the Secretary through
non- state.gov email address. incomprehensible that the State Department has not known
since Secretary Clinton began using the non- state.gov email address that her government
emails were not being searched made readily available response this FOIA request,
well other requests.
11.
Moreover, the extent that Secretary Clinton used her non- state.gov email
address communicate with State Department employees who used state.gov email
addresses, consequence that these other, unknown employees emails may have been
properly stored and records-managed.
search the Office the Secretary.
These emails would not necessarily captured
The State Department would have conduct
minimum agency wide searches respond properly any records request.
Obviously, such
searches also would not capture the emails sent outside the Department, including the White
House, which are squarely within the purview Judicial Watch request.
12. similar assertion was criticized recently this Court FOIA litigation
regarding the email former Environmental Protection Agency Administrator Lisa Jackson:
When [the requestor] confronted Jackson with evidence that she did, least one occasion,
use her personal email account and Blackberry conduct government business without
forwarding the message her secondary EPA account Jackson responded that there was
need because the email included other [EPA] government accounts recipients, and
thus would preserved. course, carving exceptions into standard practice slippery
slope. Landmark Legal Foundation Environmental Protection Agency, Case No. 12-1726,
2015 U.S. Dist. LEXIS 24620, **33-34 (D.D.C. Mar. 2015).
This case more egregious
than Landmark Legal Foundation because Secretary Clinton exclusively used her
non- state.gov account for government business.
13.
With regard any possible spoliation, because time the essence Judicial
Watch respectfully requests status conference for the parties confer with the Court soon
possible.
Secretary Clinton has indicated that she has chosen not preserve all the emails
sent received her through the email address that she used exclusively conduct official
State Department business.
Time the essence and Judicial Watch continues
prejudiced undue delays and material omissions throughout this litigation.
14.
Pursuant LCvR 7(f), counsel conferred with defense counsel. Agency counsel
stated that the Department State opposes plaintiff motion seeking status conference and
will filing response. Should the Court decide schedule status conference, counsel for the
Department respectfully state that they are available any time during the week March
through March 27, 2015.
15.
Counsel for Judicial Watch also available during the week March 23, 2014.
Counsel may provide alternate additional, mutually available dates the Court requires.
WHEREFORE, Plaintiff respectfully moves this Court schedule status conference
this matter soon possible, shorten the time for the State Department file any response
opposition four business days from today filing, and for any such other relief that the Court
deems just and proper.
Supra,
Dated:
March 16, 2015
Respectfully submitted,
JUDICIAL WATCH, INC.
/S/ Ramona Cotca
Ramona Cotca, D.C. Bar No. 501159
Judicial Watch, Inc.
425 Third Street, SW, Suite 800
Washington, 20024
(202) 646-5172
Attorneys for Plaintiff