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JW v State Clinton Deposition Opposition 01363

JW v State Clinton Deposition Opposition 01363

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***NOTE PUBLIC ACCESS USERS*** Judicial Conference the United States
policy permits attorneys record and parties case (including pro litigants)
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U.S. District Court
District Columbia
Notice Electronic Filing
The following transaction was entered Kendall, David 7/12/2016 11:50 and filed
7/12/2016
JUDICIAL WATCH, INC. DEPARTMENT STATE
Case Name:
1:13-cv-01363-EGS
Case Number:
HILLARY RODHAM CLINTON
Filer:
Document Number: 102
Docket Text:
Memorandum opposition [97] MOTION for Order Depose Hillary Clinton,
Clarence Finney, and John Bentel filed HILLARY RODHAM CLINTON.
(Attachments: (1) Exhibit (2) Exhibit (3) Exhibit (4) Exhibit (5)
Exhibit (6) Exhibit (7) Exhibit (8) Exhibit (9) Text Proposed
Order Proposed Order)(Kendall, David)
1:13-cv-01363-EGS Notice has been electronically mailed to:
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
No. 1:13-cv-01363-EGS
U.S. DEPARTMENT STATE,
Defendant.
NON-PARTY HILLARY RODHAM CLINTON
OPPOSITION PLAINTIFF MOTION DEPOSE
HILLARY RODHAM CLINTON, CLARENCE FINNEY, AND JOHN BENTEL
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Counsel for Non-Party Hillary Rodham
Clinton
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
TABLE CONTENTS
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2
Secretary Clinton Use Personal E-mail ............................................................2
This Lawsuit.............................................................................................................4
ARGUMENT ...................................................................................................................................5
JUDICIAL WATCH HAS NOT DEMONSTRATED NEED DEPOSE
SECRETARY CLINTON. ...................................................................................................5
Judicial Watch Already Has Extensive Record About the Creation,
Purpose, and Use clintonemail.com. ...................................................................5
The Questions Identified Judicial Watch Are Either Answered
Irrelevant. .................................................................................................................7
Secretary Clinton continued use the system..........................................9
Secretary Clinton claim over the records the clintonemail.com
system .........................................................................................................10
Secretary Clinton inventorying records upon completion her
tenure secretary .....................................................................................12
Secretary Clinton choice type e-mail system conduct
official government business ......................................................................13
The purpose for the clintonemail.com system ..............................................7
Bryan Pagliano role creating and operating the
clintonemail.com system ............................................................................13
This Court Should Not Permit Deposition Secretary Clinton.........................14
II.
THE REQUESTED DISCOVERY FUTILE. ...............................................................15
III.
THIS COURT LACKS JURISDICTION ORDER DISCOVERY RELATED SECRETARY CLINTON USE PRIVATE E-MAIL THIS CASE. .............16
Kissinger Controls This Case.................................................................................17
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page General Intent Thwart FOIA Does Not Render Kissinger
Inapplicable. ...........................................................................................................19
CONCLUSION ..............................................................................................................................20
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
INTRODUCTION
This case arises from FOIA request submitted Plaintiff Judicial Watch, Inc. seeking
records related Ms. Huma Abedin status special government employee. May 2016,
this Court permitted Judicial Watch take limited discovery deemed relevant the narrow
legal question whether the State Department, good faith, conduct[ed] search reasonably
calculated uncover all relevant documents. Docket Entry Dkt. particular, the
Court authorized discovery related the creation, purpose and use the clintonemail.com
server determine whether there evidence substantiating Judicial Watch allegation that the
State Department sought thwart FOIA. Id. 11. result this Court order, Judicial
Watch deposed seven current and former State Department employees. addition, Judicial Watch now has available vast public record this subject.
Secretary Clinton testified publicly about her e-mail before the Benghazi Select Committee
October 22, 2015. The testimony this topic Secretary Clinton aides well other State
Department employees the Select Committee also has been publicly released. May 2016, the
State Department Inspector General issued report e-mail records management the Office the Secretary, which included assessment practices during Secretary Clinton tenure.
July 2016, FBI Director James Comey publicly announced the findings the FBI year-long
investigation security referral from the Intelligence Community Inspector General related
Secretary Clinton e-mail. Director Comey later testified for more than four hours this subject
before the House Oversight and Government Reform Committee July 2016.
Despite this public testimony and the various investigative reports, Judicial Watch claims
that needs depose Secretary Clinton, former Cabinet Secretary, about six purportedly unanswered questions. The record, however, already answers those questions makes clear that Secretary Clinton has personal knowledge provide. And many Judicial Watch proposed
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
topics are irrelevant the issue for which sought discovery: whether the State Department and
Mrs. Clinton deliberately thwarted FOIA. Dkt. Dkt. Indeed, Judicial Watch
ignores that issue altogether its Motion. That failure unsurprising, the FBI concluded after
its year-long investigation that Secretary Clinton did not intend conceal records from the public. any event, the discovery requested Judicial Watch futile. The ostensible purpose the requested discovery determine whether this Court should compel Secretary Clinton
produce her @clintonemail.com account (including any personal e-mail) from her private e-mail
server equipment the State Department for further searching response Judicial Watch
FOIA request. Even this Court had authority issue such unprecedented relief, Secretary Clinton has nothing produce, the server equipment used host her @clintonemail.com account the possession the FBI.
Finally, for the sake preserving any and all rights, counsel Secretary Clinton respectfully submit that discovery unwarranted this case general matter. Under Kissinger
Reporters Committee for Freedom the Press, 445 U.S. 136 (1980), this Court lacks jurisdiction compel disclosure documents Secretary Clinton private server equipment irrespective any alleged intent thwart FOIA because those documents were outside the State Department possession control when Judicial Watch submitted its FOIA request.
BACKGROUND
Secretary Clinton Use Personal E-mail
Secretary Clinton was Secretary State from January 21, 2009 February 2013. Before becoming Secretary State, she served the Senate. When she arrived the State Department, she already had been using personal e-mail account for both Senate-related and personal
e-mail. Mills Deposition Dep. 45:7 48:5; Abedin Dep. 38:11 39:8. She continued that
practice upon becoming Secretary State. Mills Dep. 45:7 48:5; Abedin Dep. 38:11 39:8.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Secretary Clinton has stated that the reason she used private e-mail address for work was the
convenience doing so. Mills Dep. 172:20 173:4; Ex. 188 (Testimony Huma Abedin the Benghazi Select Committee); see also Ex. The FBI confirmed result its
investigation that Secretary Clinton used private e-mail for the sake convenience. See Ex.
20, (Testimony James Comey the House Oversight and Government Reform Committee).
Although e-mail was not her primary means communication, see Ex. 285, 401
(Testimony Hillary Rodham Clinton the Benghazi Select Committee); Mills Dep. 257:8
258:19; Abedin Dep. 157:2 158:6, Secretary Clinton did use e-mail for State Department business. During virtually all her tenure Secretary State, Secretary Clinton used personal email account, hdr22@clintonemail.com, for work-related and personal e-mail.1 Ex. 335.
During her tenure, that account was hosted server equipment the Clinton home Chappaqua,
New York. Mills Dep. 264:21 265:12; Dkt. 48-6, 237. The server equipment was set for
the use former President Clinton staff, and Secretary Clinton e-mail account was added
it. Ex. 403; Mills Dep. 259:2 13. 2013, after Secretary Clinton left the State Department,
the account was transitioned equipment managed Platte River Networks, private company.
Ex. 403; Mills Dep. 103:8 104:2; Dkt. 48-6, 237.
Secretary Clinton practice was e-mail State Department officials their state.gov email accounts. Ex. 408; see also Abedin Dep. 120:19 121:3. She corresponded with
numerous State Department officials including Legal Adviser Harold Koh, Under Secretary for
Management Patrick Kennedy (the Department senior agency official for records management),
and other senior Department officials. See, e.g., Ex. Kennedy Dep. 10:7 12, 61:11 14.
Secretary Clinton briefly used ATT account after initially arriving the State Department.
Mills Dep. 47:17 49:12.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
other words, wasn secret that she was using this e-mail account communicating with
U.S. government officials, because they were receiving e-mails from her. Abedin Dep. 52:9
12. Secretary Clinton has testified that her understanding was that all [her] work-related emails [government e-mail] accounts were being captured and preserved. Ex. 425. the fall 2014, the State Department requested that Secretary Clinton and other former
Secretaries State provide copies federal records that may not otherwise have been preserved the Department record-keeping system. Dkt. 18-1. Secretary Clinton attorneys oversaw the
process responding the Department request. Ex. 401. Secretary Clinton sought
produce all e-mails that could possibly construed work-related. Ex. 402; Dkt. 22-1. result her attorneys review, December 2014 counsel Secretary Clinton provided the
State Department with approximately 55,000 pages e-mails. See Dkt. 22-1; Dkt. 26-1, 13.
This Lawsuit
Judicial Watch submitted the FOIA request issue this case May 21, 2013, nearly
four months after Secretary Clinton tenure Secretary State ended. See Dkt. After State
produced responsive documents, Judicial Watch dismissed the case with prejudice March 2014.
Dkt. 12. March 2015, the parties agreed reopen the case. Dkt. 14. The State Department
then searched the e-mails that Secretary Clinton had provided the Department December 2014
using agreed-upon search terms. Dkt. 47-2, 43. responsive e-mails were located. Id. 45.
After the Department moved for summary judgment, Judicial Watch moved for discovery
under Rule 56(d). This Court granted that motion, concluding that questions surrounding the
creation, purpose and use the clintonemail.com server must explored before this Court can
decide, matter law, whether the Government has conducted adequate search response Judicial Watch FOIA request. Dkt. Judicial Watch does not appear contest the
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
adequacy the Department search the 55,000 pages e-mails that Secretary Clinton provided it. Instead, Judicial Watch contends that FOIA requires the Department attempt
acquire and search Secretary Clinton @clintonemail.com account, including any personal e-mail,
that once resided her private e-mail server equipment. See Feb. 23, 2016 Tr. 45:6 22,
47:1
ARGUMENT
Judicial Watch has not demonstrated need depose Secretary Clinton, former Cabinet
Secretary. Although Judicial Watch identifies six questions would like ask Secretary Clinton,
the voluminous record available Judicial Watch which includes Secretary Clinton sworn
testimony answers many those questions. The remainder are irrelevant the narrow issue
which limited discovery was permitted. The requested deposition, moreover, would exercise futility. matter how much discovery Judicial Watch takes, the ultimate relief seeks
production and search Secretary Clinton clintonemail.com account either the State Department Secretary Clinton impossible obtain this case, Secretary Clinton does not have
possession control the equipment that housed that account. Finally, this Court lacks jurisdiction order the requested discovery. Because the State Department did not possess control the
e-mail account when Judicial Watch submitted the at-issue request (or any time subsequent
the request), could not withhold e-mails from that account even if, Judicial Watch incorrectly
claims, there was intent thwart FOIA generally.
JUDICIAL WATCH HAS NOT DEMONSTRATED NEED DEPOSE SECRETARY CLINTON.
Judicial Watch Already Has Extensive Record About the Creation, Purpose, and Use clintonemail.com.
Discovery FOIA cases rare. Schrecker U.S. DOJ, 217 Supp. 29,
(D.D.C. 2002), aff 349 F.3d 657 (D.C. Cir. 2003); see Thomas Dep Health Human
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Servs., 587 Supp. 114, 115 n.2 (D.D.C. 2008); Judicial Watch, Inc. Exp.-Imp. Bank, 108 Supp. 19, (D.D.C. 2000). This Court already has taken the unusual step permitting
Judicial Watch take limited discovery related the creation, purpose, and use clintonemail.com. The Benghazi Select Committee, the State Department Inspector General, and the
FBI also have conducted inquiries and made findings this subject. The findings those inquiries have been made public, which had not occurred when this Court first permitted discovery.
See Feb. 23, 2016 Tr. 57:5 17. Judicial Watch now has voluminous record related
Secretary Clinton use private e-mail. That record includes:
The testimony current and former State Department witnesses before the Benghazi
Select Committee, including Under Secretary for Management Patrick Kennedy, the
former director Information Resource Management for the Executive Secretariat,
and Secretary Clinton senior aides Cheryl Mills, Huma Abedin, and Jacob Sullivan2;
Depositions six fact witnesses this case, including Ms. Mills and Ms. Abedin; deposition the State Department Rule 30(b)(6) witness this case;
Verified interrogatory responses from the State Department this case, see Dkt. 97-1; January 2016 report the State Department Inspector General regarding FOIA processes for requests involving the Office the Secretary, see Ex. May 2016 report the State Department Inspector General regarding e-mail records
management the Office the Secretary, which covers the period Secretary Clinton tenure, see Ex.
The State Department production Judicial Watch documents cited the May
2016 State Department Inspector General report, see Dkt. 97-2;
Secretary Clinton public testimony during eleven-hour hearing before the Benghazi Select Committee October 22, 2015, see Ex.
The June 28, 2016 Report the Select Committee the Events Surrounding the 2012
Terrorist Attack Benghazi;
Http://democrats-benghazi.house.gov/work/interview-transcripts.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
FBI Director Comey July 2016 public remarks regarding the findings the FBI
investigation, which included voluntary interview Secretary Clinton3;
FBI Director Comey testimony the House Oversight and Government Reform
Committee July 2016, see Ex. and
30,322 e-mails and corresponding e-mail attachments provided counsel Secretary
Clinton the State Department available the public the Department website.
The Questions Identified Judicial Watch Are Either Answered Irrelevant.
Discovery FOIA case not punishment for deficient agency performance.
Asarco, Inc. U.S. EPA, No. 08-1332 (EGS/JMF), 2009 1138830, (D.D.C. Apr. 28,
2009). FOIA requester entitled discovery only when there has emerged genuine issue material fact which can only resolved evidentiary hearing. Id. *1. The ostensible
reason for requesting discovery here resolve dispute fact regarding whether the State
Department deliberately thwarted FOIA through Secretary Clinton use clintonemail.com.
See Dkt. see also infra Part III. Judicial Watch ignores this fundamental question its
motion. Instead, simply lists series topics related Secretary Clinton e-mail completely
divorced from the ultimate question fact for which claims want testimony from Secretary
Clinton. This Court granted discovery, however, resolve narrow legal question. Dkt. Many Judicial Watch topics bear rational connection that narrow question. And the
voluminous record available Judicial Watch already provides answers those that do.
The purpose for the clintonemail.com system
Secretary Clinton has repeatedly stated that the purpose using the clintonemail.com system was convenience, continuation her Senate practice. See Mills Dep. 172:20 173:4;
Https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comeyon-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Ex. 188; see also Ex. FBI Director Comey testified before Congress that Secretary
Clinton told the FBI her interview that she used the clintonemail.com system for the sake
convenience. See Ex. 74. According Director Comey, Our best information that she
set matter convenience. was existing system her husband had and she decided
have domain that system. Ex. 20.
Moreover, there evidence that the purpose the clintonemail.com system was
thwart FOIA, Judicial Watch claims. Secretary Clinton herself has testified that her practice
was e-mail State officials their government accounts, and she thought that those e-mails were
being captured and preserved the Department record-keeping systems.4 See Ex. 408, 425.
Ms. Mills shared that belief. See Mills Dep. 183:9 184:4, 218:3 238:16 239:21, 261:4 10.
Even that understanding was mistaken, does not amount intent evade FOIA. Notably,
Secretary Clinton use private e-mail account was transparent State Department officials,
including those responsible for records management. See supra pp.3 The fact that she corresponded with the Department Legal Adviser and Under Secretary for Management belies any
notion that the e-mail system was intended thwart FOIA.
Although Secretary Clinton corresponded widely with senior officials the Department,
there evidence that anyone expressed concern Secretary Clinton her aides about the
record-keeping implications her use personal e-mail. Neither Ms. Abedin nor Ms. Mills
recalled anyone raising such concerns with them the Secretary, participating conversations that topic. Mills Dep. 183:9 16, 190:15 21; Abedin Dep. 114:4 117:18 118:3, 135:18
That belief, even mistaken, was not unreasonable. the State Department Inspector General
reported, when Secretary Colin Powell representative asked Department staff whether they
needed anything preserve the Secretary emails [on private e-mail address] prior his
departure, the staff responded that the Secretary emails would captured Department
servers because the Secretary had emailed other Department employees. Ex. 21.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
138:22; Ex. 123, 161. Ambassador Stephen Mull, who was ultimately responsible for FOIA
activities the Executive Secretariat during much Secretary Clinton tenure, testified that
did not hear any concerns about Secretary Clinton e-mail not being subject FOIA. Mull
Dep. 28:6 15, 80:1 11; see also Mull Dep. 86:7 16; Kennedy Dep. 58:1
Given these facts, not surprising that Secretary Clinton closest aides, Ms. Mills and
Ms. Abedin, testified that they have [a]bsolutely reason believe that Secretary Clinton
used Clintonemail.com conduct government business because she anyone else the State
Department was seeking avoid FOIA. Mills Dep. 263:7 11; Abedin Dep. 164:22 165:6,
195:15 19, 220:22 221:3. And, after year-long investigation, the FBI did not find that Secretary
Clinton used private server because she wanted shield communications from Congress and
the public. Ex. 20. Rejecting that proposition, Director Comey testified, Our best information that she set matter convenience. Ex. 20. Judicial Watch has provided basis conclude that deposition Secretary Clinton this case would produce information
different than what she and others have already provided, and discovery FOIA case not
available afford[] [the plaintiff] opportunity pursue bare hope falling upon something that might support its claim. Military Audit Project Casey, 656 F.2d 724, 751 (D.C.
Cir. 1981) (quotation marks omitted).
Secretary Clinton continued use the system
Judicial Watch also claims that needs know why Secretary Clinton continued using
the clintonemail.com system despite supposed problems and disruptions. Its underlying assumption that the clintonemail.com system had more problems than the state.gov system not supported the record. Ms. Abedin has testified that there were just many technical issues with
the state.gov system with the clintonemail.com system. See Ex. 175; see also Abedin Dep. 84:10 [I]t was both Clinton e-mail and State.gov having the communications challenges.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Ms. Abedin also testified that Secretary Clinton did not switch state.gov e-mail account because the technical issues with clintonemail.com were resolved. Abedin Dep. 193:21 194:6.
Judicial Watch points series e-mails related technical difficulties. Secretary Clinton, however, was not party most those e-mails, and Judicial Watch has deposed many
the persons who were. Although Judicial Watch highlights e-mail Ms. Abedin mentioning
that State-issued Blackberry would subject FOIA, see Mot. Ms. Abedin testified that
she did not remember discussing this with the Secretary. Abedin Dep. 167:10 170:8. Judicial Watch has need depose Secretary Clinton about other people e-mails.
Judicial Watch identifies only one communication involving Secretary Clinton, but that
document disproves any intent thwart FOIA. When Ms. Abedin suggested that Secretary Clinton obtain state.gov e-mail address 2010, the Secretary did not express concern that her workrelated e-mails would subject FOIA. See Dkt. 97-2, Doc. She stated only that she did not
want her personal e-mails accessible. Id.; see Abedin Dep. 188:17 193:9. Judicial
Watch suggestion that needs depose Secretary Clinton find out what she meant not
credible. Judicial Watch has already deposed Ms. Abedin about this exchange, see Abedin Dep. 180:19 194:6, and the meaning Secretary Clinton statement obvious its face.
Secretary Clinton claim over the records the clintonemail.com system
Citing Competitive Enterprise Institute Office Science and Technology Policy, No.
15-5128, --- F.3d ----, 2016 3606551 (D.C. Cir. July 2016), Judicial Watch argues that
needs determine whether Secretary Clinton claimed any personal right exclusive control
Moreover, Ms. Abedin explained that, when she stated that the proposed State Blackberry arrangement did not make sense, she was referring not FOIA but the fact that State was proposing add not just one but two additional devices. Abedin Dep. 176:6 177:17.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
over the emails the clintonemail.com system. Mot. Competitive Enterprise Institute,
however, involves FOIA request for the records current agency head. See 2016
3606551, *1. This case involves request for the e-mails former agency head. Competitive
Enterprise Institute thus does not govern this case. See id. (Srinivasan, J., concurring) (explaining that the case does not involve[] records held someone having present affiliation
with the agency the time the FOIA request Moreover, even did, the Court Appeals
expressly pointed out that was not deciding what relief was appropriate. See id. make
clear that are not ordering the specific disclosure any document. did not order that the
agency head was required give her agency unfettered access all her personal e-mails (as
opposed reviewing her e-mails herself), Judicial Watch requests here.
Even relevant, Competitive Enterprise Institute would not warrant discovery. The relief
Judicial Watch seeks order requiring the State Department obtain Secretary Clinton entire
e-mail account search for any additional e-mails. That e-mail account, which was hosted
private server equipment, was possessed privately under claim right, and has never been the
property the possession control the State Department.
Judicial Watch further claims that needs know whether Secretary Clinton deleted
work-related e-mails during her tenure Secretary i.e., before Judicial Watch submitted its
FOIA request. That question irrelevant this FOIA case. FOIA does not obligate agencies
retain records; the obligation retain records arises from the Federal Records Act, which does not
confer private right action. See Kissinger Reporters Committee for Freedom the Press,
445 U.S. 136, 152 (1980); see also infra Part III. Finally, Judicial Watch claims that needs
know Secretary Clinton understanding her FOIA obligations, but Secretary Clinton has already testified that very issue. See supra pp.3-4.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Secretary Clinton inventorying records upon completion her tenure secretary
Judicial Watch further argues that needs information about Secretary Clinton inventorying records the end her tenure. Mot. highlights meeting between [Clarence]
Finney, Ms. Abedin and other personnel from the Office the Secretary about what records Secretary Clinton and her staff were allowed take with them when they left the State Department.
Mot. But Secretary Clinton was not that meeting. See Abedin Dep. 141:5 Moreover,
Secretary Clinton was not the person inventorying her records. Her staff was performing that task.
See Abedin Dep. 141:8 143:10. Ms. Abedin has already explained why record management
officials apparently were not advised about official, government records the clintonemail.com
system when the secretary transitioned out the department. Mot. 10. She testified: you know why nobody informed Mr. Finney about the State-related e-mails Secretary Clinton Clintonemail.com account? think mentioned earlier, not anything that occurred us.
all wish could back and that not the case. did not occur those
who were involved. And that the same answer? specifically asking for the time period during
the transition process prior leaving the State Department. Yes, am. understand. did not did not occur us.
Abedin Dep. 145:1 16; see also Abedin Dep. 219:5 14; Ex. 138, 188. Similarly, Ms.
Mills testified: you never thought about how were the federal records that were stored
her e-mail account, how would the State Department have access that after she
left? assumed, now know inaccurately, that records that were State system
were ones that were kept forever. Obviously come learn that that not the
case. And thought since the Secretary practice was e-mail people their
State [accounts], that there was resident the department set records with
respect her work the department. And thought they would have been there.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page But what about but what about the federal records that were the e-mails between the Secretary and other people outside the State Department; what about
those e-mails? wish had thought about that subset. didn think about that.
Mills Dep. 239:7 240:17.
Secretary Clinton choice type e-mail system conduct official
government business
Judicial Watch next argues that needs know why Secretary Clinton switched from
supposedly archived commercial ATT e-mail account the non-archived clintonemail.com
account early her tenure Secretary State. Mot. 11. This argument both factually
unfounded and wholly irrelevant. Secretary Clinton produced the State Department 55,000
pages e-mails from her clintonemail.com account. Judicial Watch knows, she was unable retrieve produce e-mails from the supposedly archived ATT account that she used early her tenure. See Dkt. 43; Ex. (Letter from David Kendall Patrick Kennedy (Oct. 2015)).
Bryan Pagliano role creating and operating the clintonemail.com
system
Finally, Judicial Watch claims that needs know how Bryan Pagliano received job
the State Department and what work performed the clintonemail.com system. Mot. 12. makes attempt explain how this information any way relevant the question intent thwart FOIA. Even this topic were relevant, Judicial Watch fails establish that Secretary
Clinton has any relevant knowledge. Ms. Mills testified that her knowledge Secretary Clinton
did not request that Mr. Pagliano receive job the Department. See Mills Dep. 154:20 22.
Moreover, Judicial Watch has identified documents related Mr. Pagliano hiring the Department, see Mills Ex. and none them suggests that Secretary Clinton had any involvement.
There basis conclude that she has any information these (irrelevant) questions.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
This Court Should Not Permit Deposition Secretary Clinton. this record, Judicial Watch request for more discovery under Rule 56(d) improper fishing expedition[]. Doe U.S. DOJ, 660 Supp. 31, (D.D.C. 2009) (quotation
marks omitted); see also Exxon Corp. FTC, 663 F.2d 120, 128 (D.C. Cir. 1980) not the
intent Rule preserve purely speculative issues fact Judicial Watch has answers the questions that are relevant the disputed issue fact this case. The fact that Judicial
Watch does not like those answers does not warrant more discovery.
This Court should especially wary Judicial Watch claim that needs depose
Secretary Clinton, former Cabinet Secretary. general matter, subjecting cabinet officer oral deposition not normally countenanced. Peoples U.S. Dep Agriculture, 427 F.2d
561, 567 (D.C. Cir. 1970); see also Simplex Time Recorder Co. Sec Labor, 766 F.2d 575,
586 (D.C. Cir. 1985); Papandreou, 139 F.3d 247, 253 (D.C. Cir. 1998). For that reason, the
Court Appeals requires litigant show extraordinary circumstances before permitting
deposition high-ranking government official. See United States, No. 14-5146, 2014 U.S.
App. LEXIS 14134, (D.C. Cir. July 24, 2014) (per curiam) (granting writ mandamus
quash the deposition the Secretary Agriculture absent showing extraordinary circumstances see also, e.g., Lederman N.Y.C. Dep Parks Recreation, 731 F.3d 199, 203 (2d
Cir. 2013); United States, 624 F.3d 1368, 1374 (11th Cir. 2010). This Court has extended
this requirement requests depose former high-ranking government officials. See, e.g., FDIC Galan-Alvarez, No. 1:15-mc-00752(CRC), 2015 5602342, (D.D.C. Sept. 2015);
Willingham Ashcroft, 226 F.R.D. 57, (D.D.C. 2005); see also United States, 542
App 944, 949 (Fed. Cir. 2013) (suggesting that the requirement would apply the case former
high-ranking officials).
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Litigants are not typically permitted depose high-ranking government officials the
requested information can obtained elsewhere, including from lower-ranking government officials. See, e.g., Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008) (per curiam); United States,
197 F.3d 310, 314 (8th Cir. 1999). For all the reasons already set forth, Judicial Watch has obtained the requested information from other current and former government officials, well
from Secretary Clinton prior testimony the Benghazi Select Committee. deposition Secretary Clinton this case would entirely cumulative and unnecessary.6
II.
THE REQUESTED DISCOVERY FUTILE.
The requested deposition inappropriate for independent reason. FOIA authorizes
courts grant only limited relief: court can enjoin the agency from withholding agency records
and order the production any agency records improperly withheld from the complainant. U.S.C. 552(a)(4)(B). Judicial Watch sought discovery determine whether the Department
should required search Secretary Clinton e-mail account identify and produce workrelated e-mails, any, responsive Judicial Watch request. See Dkt. 48, Feb. 23, 2016 Tr. 47:1 Even this Court had authority order Secretary Clinton produce her
clintonemail.com e-mails her private e-mail server equipment the Department (it does not),7 minimum, the Court decides, notwithstanding the arguments herein, that further discovery necessary, counsel Secretary Clinton respectfully urge this Court allow Secretary Clinton provide information writing. Secretary Clinton has already testified spoken about some
the topics for which Judicial Watch claims need discovery and has virtually knowledge
others. Requiring her sit for deposition for the purpose repeating her prior statements
stating that she has knowledge certain topics would serve useful purpose.
Although court may have authority under FOIA compel nonparties return documents
responsive FOIA request where agency transferred those documents evade preexisting
FOIA request, see Judicial Watch, Inc. U.S. Dep Commerce, Supp. 28, (D.D.C.
1998), Judicial Watch has identified authority for the altogether different proposition that FOIA
authorizes courts compel nonparties produce agency entire personal e-mail accounts
that may may not contain responsive documents. the Department has explained, the obligation determine whether e-mail federal record requiring preservation remains with the
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
that relief impossible practical matter. connection with the FBI investigation, Secretary
Clinton voluntarily provided the FBI the server equipment that housed her clintonemail.com
account for the proper purpose facilitating the FBI security-related investigation. See Dkt. 241, Ex. She does not have access her clintonemail.com account. Even this Court were
issue subpoena Secretary Clinton, she has nothing her possession custody produce.
Judicial Watch itself has acknowledged that its request for discovery could moot point
precisely this circumstance. Feb. 23, 2016 Tr. 11:5 16.
Judicial Watch has represented that has filed FOIA request with the FBI. See Oct.
2015 Tr. 39:2 That request the only avenue which Judicial Watch can request the
documents seeks. See DiBacco U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (holding that
where documents are transferred another agency after receipt FOIA request for proper
reason, FOIA does not compel the agency [that received the FOIA request] take further action order produce that document (quotation marks omitted)); see also Dkt. 47-1 17.
III.
THIS COURT LACKS JURISDICTION ORDER DISCOVERY RELATED SECRETARY CLINTON USE PRIVATE E-MAIL THIS CASE.
Finally, counsel Secretary Clinton, who have not previously had the chance address
this Court, respectfully urge the Court reconsider its ruling granting discovery general matter. submit that the Court lacks jurisdiction order production documents from Secretary
Clinton private e-mail server equipment, which was not the Department possession control when Judicial Watch submitted its FOIA request. Judicial Watch allegation intent
thwart FOIA, even true, would not alter that fact.
employee. See Dkt. 11. Secretary Clinton direction, her counsel made that determination with respect her e-mails and provided 55,000 pages e-mails the Department.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Kissinger Controls This Case. court has jurisdiction devise remedies and enjoin agencies under FOIA only the
agency has (1) improperly (2) withheld (3) agency records. Kissinger, 445 U.S. 150
(1980) (quotation marks omitted). These requirements are jurisdictional. See id.; see also Bureau Nat Affairs, Inc. U.S. DOJ, 742 F.2d 1484, 1488 (D.C. Cir. 1984).
The Supreme Court construed the statutory term withheld Kissinger. that case,
Secretary State Henry Kissinger had removed transcriptions his telephone conversations from
the State Department and deeded them the Library Congress under terms that prohibited
public access for years. 445 U.S. 139 42. The plaintiffs requested the transcriptions under
FOIA after Kissinger had deeded them the Library Congress. Id. 143. Kissinger and the
Library Congress were holding the documents under claim right. Id. 155. The Court
held that, even assuming that Kissinger removal the records violated the Federal Records Act,
the district court lacked authority order their return the State Department. Id. 148, 155.
The Supreme Court observed that FOIA does not obligate agencies create retain
documents; only obligates them provide access those which fact has created and retained. Id. 152. The Federal Records Act not FOIA governs agency obligation
retain records, even though the agency failure deprives the public information which
might have otherwise been available it. Id. the Court explained, [i]f the agency not
required create retain records under the FOIA, somewhat difficult determine why
the agency nevertheless required retrieve documents which have escaped its possession, but
which has not endeavored recover. Id. concluded: Congress did not mean that agency
improperly withholds document which has been removed from the possession the agency prior the filing the FOIA request. such case, the agency has neither the custody control
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
necessary enable withhold. Id. 150 51. agency refusal resort legal remedies obtain possession not withholding the record. Id. 151.
The Court thus held that withholding must gauged the time which the
request made since there FOIA obligation retain records prior that request. Id.
155 n.9. Applying this standard, the Court readily found that the State Department had not withheld Kissinger transcriptions because did not have possession control the documents
the time the requests were received. Id. 155. Both the Court Appeals and this Court have
repeatedly applied Kissinger hold that agency withholds agency records only the records
are its possession control the time FOIA request made. See, e.g., Founding Church
Scientology Regan, 670 F.2d 1158, 1163 (D.C. Cir. 1981) (reversing district court order
compelling agency retrieve documents transferred third party); Piper U.S. DOJ, 294
Supp. 16, (D.D.C. 2003) (holding that agency not required reconstruct deleted records because FOIA triggered agencies having actual possession the requested documents aff per curiam, 222 App (D.C. Cir. 2007); Judicial Watch, Inc. Dep Commerce, Supp. 28, (D.D.C. 1998) [T]he status particular document the time the
FOIA request submitted determines whether the unreasonable failure produce that document unlawful withholding. see also Competitive Enter. Inst., 2016 3606551, (Srinivasan, J., concurring) (suggesting that agency does not have possession control documents
held person unaffiliated with the agency the time the request
Kissinger squarely governs this case. When Judicial Watch submitted its FOIA request
May 2013, Secretary Clinton was not employed the State Department. Secretary Clinton held
her privately owned server equipment under claim right and later voluntarily provided that
equipment the FBI for proper purpose. Kissinger, 445 U.S. 155. Judicial Watch has not
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
offered any colorable argument that the equipment e-mail account was under the Department
possession control the time the FOIA request, and the Department has disclaimed that
was. See Lang 30(b)(6) Dep. 108:21 109:11; Dkt. 97-1, This Court lacks jurisdiction compel production Secretary Clinton e-mails. General Intent Thwart FOIA Does Not Render Kissinger Inapplicable.
Judicial Watch has argued that Kissinger inapplicable when agency official seeks
thwart FOIA general matter. Dkt. 48, Counsel Secretary Clinton respectfully submit
that this reading Kissinger incorrect. footnote nine Kissinger, the Supreme Court raised but did not decide whether the
possession control requirement might displaced the event that was shown that
agency official purposefully routed document out agency possession order circumvent
FOIA request. Nat Sec. Archive Archivist the U.S., 909 F.2d 541, 546 (D.C. Cir. 1990)
(per curiam) (quoting Kissinger, 445 U.S. 155 n.9). That footnote does not mean that the possession control test displaced when agency official removes agency records prevent
their release future FOIA requesters general matter. That reading the footnote incompatible with the rest the Kissinger decision. Kissinger recognizes, FOIA does not obligate
agencies create retain documents. 445 U.S. 152; see also Whitaker CIA, Supp. 23, (D.D.C. 2014) (holding that failure retain documents does not create liability
under FOIA Except with respect certain categories documents not applicable here,
agency obligation under FOIA arises only once receives FOIA request. See U.S.C.
552(a)(3)(A). Because FOIA imposes obligations until receipt FOIA request, agency
official cannot thwart FOIA removing agency records before the agency receives request.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Judicial Watch expansive reading footnote nine also conflicts with the Supreme
Court decision U.S. DOJ Tax Analysts, 492 U.S. 136 (1989). that case, the Supreme
Court observed that materials are agency records for purposes FOIA only they are the
agency control the time the request made. Id. 145 46. Invoking Kissinger footnote
nine, the Court explained that disputes about whether agency controls requested materials could
arise where requested materials are purposefully routed out agency possession order
circumvent [an impending] FOIA request, are wrongfully removed individual after
request filed. Id. 146 n.6 (quoting Kissinger, 445 U.S. 155 n.9) (alterations original).
The Court thus clarified that the question left open Kissinger whether the possession control standard should displaced where agency official removes materials that are the
subject impending (i.e., imminent) FOIA request. That standard requires close temporal
connection between official removal records and specific FOIA request. That standard
cannot satisfied here. Judicial Watch FOIA request was submitted nearly four months after
Secretary Clinton left the State Department, and there evidence that Secretary Clinton
anyone else the Department knew that Judicial Watch would submit the request, let alone intended circumvent it. Absent such evidence, Kissinger footnote nine irrelevant.
CONCLUSION
For the foregoing reasons, counsel Secretary Clinton respectfully request that this Court
deny Judicial Watch motion for permission depose Secretary Clinton.
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
Respectfully submitted,
/s/ David Kendall
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
dkendall@wc.com
kturner@wc.com
asaharia@wc.com
Counsel for Non-Party Hillary Rodham
Clinton
July 12, 2016
Case 1:13-cv-01363-EGS Document 102 Filed 07/12/16 Page
CERTIFICATE SERVICE David Kendall, counsel for Non-Party Hillary Rodham Clinton, certify that, July
12, 2016, copy this Opposition Plaintiff Motion Depose Hillary Rodham Clinton, Clarence Finney, and John Bentel was filed via the Court electronic filing system, and served via that
system upon all parties required served.
/s/ David Kendall
David Kendall
Case 1:13-cv-01363-EGS Document 102-1 Filed 07/12/16 Page
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REP. JASON Case 1:13-cv-01363-EGS THE FBI RECOMMENDATION...
CHAFFETZ HOLDS HEARING Document 102-3 Filed 07/12/16
7/7/16 CQ-RollCall Pol. Transcriptions 23:57:00
CQ-RollCall Political Transcriptions
Copyright (c) 2016 Roll Call, Inc.
July 2016
REP. JASON CHAFFETZ HOLDS HEARING THE FBI RECOMMENDATION
REGARDING HILLARY CLINTONS PRIVATE EMAIL SERVER
(CORRECTED COPY)
HOUSE COMMITTEE OVERSIGHT AND GOVERNMENT REFORM HOLDS HEARING THE FBI
RECOMMENDATION REGARDING HILLARY CLINTONS PRIVATE E-MAIL SERVER, PANEL
JULY 2016
SPEAKERS: REP. JASON CHAFFETZ, R-UTAH. CHAIRMAN REP. JOHN MICA, R-FLA. REP. MICHAEL TURNER, R-OHIO REP. JOHN DUNCAN JR., R-TENN. REP. KEN BUCK, R-COL. REP. JIM JORDAN,
R-OHIO REP. JODY HICE, R-GA. REP. TIM WALBERG, R-MICH. REP. GLENN GROTHMAN, RWISC. REP. JUSTIN AMASH, R-MICH. REP. PAUL GOSAR, R-ARIZ. REP. BUDDY CARTER, R-GA. REP.
SCOTT DESJARLAIS, R-TENN. REP. TREY GOWDY, R-S.C. REP. STEVE RUSSELL, R-OK. REP. WILLIAM
HURD, R-TEXAS REP. BLAKE FARENTHOLD, R-TEXAS REP. GARY PALMER, R-AL. REP. CYNTHIA
LUMMIS, R-WYO. REP. MARK WALKER, R-N.C. REP. THOMAS MASSIE, R-KY. REP. MICK MULVANEY,
R-S.C. REP. ROD BLUM, R-IND. REP. RON DESANTIS, R-FLA. REP. MARK MEADOWS, R-N.C.
REP. ELIJAH CUMMINGS, D-MD. RANKING MEMBER REP. CAROLYN MALONEY, D-N.Y. DEL.
ELEANOR HOLMES NORTON, D-D.C. REP. WILLIAM LACY CLAY, D-MO. REP. STEPHEN LYNCH,
D-MASS. REP. JIM COOPER, D-TENN. REP. GERALD CONNOLLY, D-VA. REP. MATT CARTWRIGHT,
D-PA. REP. TAMMY DUCKWORTH, D-ILL. REP. MICHELLE LUJAN GRISHAM, D-N.M. REP. PETER
WELCH, D-VT. REP. ROBIN KELLY, D-ILL. REP. BRENDA LAWRENCE, D-MICH. REP. BRENDAN
BOYLE, D-PA. REP. MARK DESAULNIER, D-CALIF. REP. TED LIEU, D-CALIF. DEL. STACEY PLASKETT,
D-VIRGIN IS. REP. BONNIE WATSON COLEMAN, D-N.J.
WITNESSES: FBI DIRECTOR JAMES COMEY
[*] CHAFFETZ: The Committee Oversight and Government Reform will come order.
Without objection, the chair authorized declare recess any time. want thank Director Comey for being here, and doing short notice.
CHAFFETZ: have the greatest admiration for the FBI. grandfather was career FBI agent.
2016 Thomson Reuters. claim original U.S. Government Works.
REP. JASON Case 1:13-cv-01363-EGS THE FBI RECOMMENDATION...
CHAFFETZ HOLDS HEARING Document 102-3 Filed 07/12/16
COMEY: believe so.
DESANTIS: And she knowingly clearly set her own private server order let ask you that, was the reason
she set her own private server your judgment was because she wanted shield communications from Congress
and the public?
COMEY: cant say that.
Our best information that she set matter convenience. was existing system her husband had and she
decided have domain that system.
DESANTIS: the question is, very sophisticated, this information that clearly anybody who had knowledge
security information would know that would classified? But having little bit trouble see, how would you
not then know that that was something that was inappropriate do?
COMEY: Well, just want take one your assumptions about sophistication. dont think that our investigation
established she was actually particularly sophisticated with respect classified information and the levels and treatment,
and far can tell...
DESANTIS: Isnt she original classification authority?
COMEY: Yes, sir.
DESANTIS: Good grief.
Well, appreciate you coming. yield back the balance time.
CHAFFETZ: thank the gentleman. ask unanimous consent enter into the record two documents that Mr. DeSantis
referred to. One the Sensitive Compartmented Information Nondisclosure agreement, the other one the Classified
Information Nondisclosure Agreement, both signed Hillary Rodham Clinton. Without objection, ordered. now
recognize the gentleman from Missouri, Mr. Clay, for five minutes.
CLAY: Thank you, Mr. Chairman. Thank you, Director Comey, for being here today and for the professionals whom
you lead the FBI.
Two years ago, after urgent request then Former Attorney General Eric Holder for expedited Justice
Department investigation into the tragic death Michael Brown Ferguson, Missouri, witnessed first hand the
diligence, professionalism, and absolute integrity your investigators. And have doubt that was the case this
matter well. did not think was possible for the majority exceed their unprecedented arrogant abuse official channels and
federal funds that have witnessed over the past two years. they have engaged partisan political witch hunt
taxpayer expense against Secretary Clinton. But was wrong, this proceeding just sequel that very bad act and
the taxpayers will get the bill.
Its new low, and violates both house rules and the rules this Committee. with apologies you and the FBI
for this blatantly partisan proceeding, let return the facts this case you have clearly outlined them.
2016 Thomson Reuters. claim original U.S. Government Works.
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CHAFFETZ: Thank the gentleman. will now recognize the gentleman from Arizona, Mr. Mr. Goshar. Oh, lets
ahead and the gentleman from South Carolina, Mr. Mulvaney first.
MULVANEY: Thank you gentleman. Director Comey, earlier today you heard long list statements that Ms. Clinton
has made previously, both the public and Congress that were not factually accurate. think you went down the whole long list. When she met with you folks Saturday last week, take she didnt say
the same things that interview?
COMEY: not equipped sitting here without the 302 front answer that broad...
MULVANEY: But its your its your testimony...
COMEY: But have basis not have basis for concluding she lied the FBI.
MULVANEY: Gotcha. Did anybody ask her Saturday, why she told yall one thing and told another?
COMEY: dont know sit here. mean, can Ill figure that out.
MULVANEY: Would that have been interest you helping establish intent?
COMEY: could have been, sure.
MULVANEY: More importantly think, did anybody ask her why she set the email system she did the first
place?
COMEY: Yes.
MULVANEY: And the answer was convenience?
COMEY: Yeah, was already there. was system her husband had and she just jumped it.
MULVANEY: Were you aware that just earlier this week, her her assistant actually said was for entirely different
reason? was was keep emails from being accessible, and that was for concealment purpose. she was -Huma Abedin was asked her deposition why was set up.
And was said, keep her personal emails from being accessible. the question, whom? anybody. Where you
aware that testimony?
COMEY: Generally, yes.
MULVANEY: OK. heres heres sort the summary take from what weve done today, which that over the
course the entire system, what she did, she intentionally set system. According your your testimony, your
findings, she was careless regarding its technical security. think you said, that even basic free account, Gmail account had better security than she had. And she did that
according her own staffers sworn deposition, For the purpose preventing access those emails. result
this, she exposed top secret information potential hack foreign actors. Youve seen the emails. have not.
2016 Thomson Reuters. claim original U.S. Government Works.
Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
EXHIBIT
Updated: The Facts About Hillary Clintons Emails
Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
THE BRIEFING
Factsheets
Updated: The Facts About Hillary
Clinton Emails put all the information about Hillary Clinton State Department emails
here. Just the facts, all one place.
Why did Clinton use her own email account?
When Clinton got the Department, she opted use her personal email account matter convenience. enabled her reach people quickly and keep regular
touch with her family and friends more easily given her travel schedule.
That the only reason she used her own account.
Her usage was widely known the over 100 State Department and U.S. government
colleagues she emailed, consistent with the practice prior Secretaries State and
permitted the time. Clinton has said, hindsight, would have been better just have two accounts.
While she thought using one account would easier, obviously, that has not been
the case.
https://www.hillaryclinton.com/briefing/factsheets/2015/07/13/email-facts/
7/11/2016
Updated: The Facts About Hillary Clintons Emails
Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
Was allowed?
Yes. The laws, regulations, and State Department policy place during her tenure
permitted her use non-government email for work.
The 2009 National Archives regulation place during her tenure required that [a]
gencies that allow employees send and receive official electronic mail messages
using system not operated the agency must ensure that Federal records sent
received such systems are preserved the appropriate agency recordkeeping
system. The regulation recognizes the use non-government email accounts. she has stated, Clintons practice was email government officials their .gov
accounts, her work emails were immediately captured and preserved. fact, more
than 90% those emails should have already been captured the State
Department email system before she provided them with paper copies. Politifact analysis also confirmed that Clintons practices complied with laws and
regulations, including support from the former director prominent government
accountability organization: Clintons defense, should note that was only
after Clinton left the State Department, that the National Archives issued
recommendation that government employees should avoid conducting official
business personal emails (though they noted there might extenuating
circumstances such emergency that require it). Additionally, 2014, President
Barack Obama signed changes the Federal Records Act that explicitly said federal
officials can only use personal email addresses they also copy send the emails
their official account. Because these rules werent effect when Clinton was office,
she was compliance with the laws and regulations the time, said Gary Bass,
founder and former director OMB Watch, government accountability
organization.
Clinton said she did not use her email send receive classified
information, but the State Department and two Inspectors General said
some these emails contain classified information. Was her
statement inaccurate?
Clinton only used her account for unclassified email. information Clintons
emails was marked classified the time she sent received them.
When information reviewed for public release, common for information
previously unclassified upgraded classified the State Department
another agency believes its public release could cause potential harm national
security, law enforcement diplomatic relations.
After reviewing sampling the 55,000 pages emails, the Inspectors General
have proffered that small number emails, which did not contain any classified
https://www.hillaryclinton.com/briefing/factsheets/2015/07/13/email-facts/
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Updated: The Facts About Hillary Clintons Emails
Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
markings and/or dissemination controls, should have been classified the time they
were sent. The State Department has said disagrees with this assessment.
Clinton hopes the State Department and the agencies involved the review process
will sort out quickly possible which the 55,000 pages emails are
appropriate share with the public.
How did Clinton receive and consume classified information?
The Secretarys office was located secure area. Classified information was viewed hard copy Clinton while the office. While travel, the State Department had
rigorous protocols for her and traveling staff receive and transmit information
all types. separate, closed email system was used the State Department for the purpose
handling classified communications, which was designed prevent such
information from being transmitted anywhere other than within that system. Department Justice conducting criminal inquiry into Clinton
email use?
No. the Department Justice and Inspectors General made clear, the IGs made
security referral. This was not criminal nature misreported some the
press. The Department Justice now seeking assurances about the storage
materials related Clinton email account. true that her email server and thumb drive were recently turned
over the government? Why?
Again, when information reviewed for public release, common for information
previously unclassified upgraded classified the State Department
another agency believes its public release could cause potential harm national
security, law enforcement diplomatic relations.
Clinton hopes that State and the other agencies involved the review process will
sort out quickly possible which emails are appropriate share with the public,
and that the release will timely and transparent possible.
When the Department upgraded some the previously unclassified email
classified, her team worked with the State Department ensure copies her emails
were stored safe and secure manner. She also directed her team give her
server that hosted her email account while she was Secretary the Department
Justice, well thumb drive containing copies her emails that already had
been provided the State Department. Clinton has pledged cooperate with the
governments security inquiry.
https://www.hillaryclinton.com/briefing/factsheets/2015/07/13/email-facts/
7/11/2016
Updated: The Facts About Hillary Clintons Emails
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Would this issue not have arisen she used state.gov email address?
Even Clintons emails had been government email address and government
device, these questions would raised prior public release.
While the State Departments review her 55,000 emails brought the issue the
Inspectors Generals attentions, the emails that recently were upgraded classified
prior public release were the unclassified .gov email system. They were not
the separate, closed system used State Department for handling classified
communications.
Have Clintons State Department aides also been asked provide the
Department and Congress with emails from their personal accounts? understand that members her State Department staff were recently asked
assist the Department its record-keeping providing any work-related emails
they may have personal accounts. They have received requests from Rep. Gowdy well.
Clinton proud the work all the dedicated public servants that were part her
team the State Department. She was proud her aides then and proud them
now, they have committed she has being helpful possible
responding requests.
Press reports say she used multiple devices Blackberry and iPad that true?
Clinton relied her Blackberry for emailing. This was easiest for her. When the iPad
came out 2010, she was curious others and found great for shopping,
browsing, and reading articles when she traveled. She also had access her email
account her iPad and sometimes used for that too.
Was she ever provided guidance about her use non-.gov email
account?
The State Department has and did provide guidance regarding the need preserve
federal records. address these requirements, was her practice email
government employees their .gov email address. That way, work emails would immediately captured and preserved government record-keeping systems.
What did Clinton provide the State Department? December 2014, 30,490 copies work potentially work-related emails sent
and received Clinton from March 18, 2009, February 2013, were provided
the State Department. This totaled roughly 55,000 pages. More than 90% her
work potentially work-related emails provided the Department were already
https://www.hillaryclinton.com/briefing/factsheets/2015/07/13/email-facts/
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Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
the State Departments record-keeping system because those e-mails were sent
received state.gov accounts.
Early her term, Clinton continued using att.blackberry.net account that she had
used during her Senate service. Given her practice from the beginning emailing
State Department officials their state.gov accounts, her work-related emails
during these initial weeks would have been captured and preserved the State
Departments record-keeping system. She, however, longer had access these
emails once she transitioned from this account.
Why did the Select Committee announce that she used multiple email
addresses during her tenure? fairness the Committee, this was honest misunderstanding. Clinton used one
email account during her tenure State (with the exception her initial weeks
office while transitioning from email account she had previously used). March
2013, month after she left the Department, Gawker published the email address she
used while Secretary, and she had change the address her account. the time the printed copies were provided the Department 2014, because
was the same account, the new email address established after she left office
appeared the printed copies the sender, and not the address she used
Secretary. fact, this address the account did not exist until March 2013. This led understandable confusion that was cleared directly with the Committee after its
press conference.
Why didnt Clinton provide her emails the State Department until
December 2014? 2014, after recognizing potential gaps its overall recordkeeping system, the
State Department asked for the help the four previous former Secretaries
meeting the State Departments obligations under the Federal Records Act.
Clinton responded this request providing the State Department with over
55,000 pages emails. was Clintons practice email U.S. government
officials their .gov accounts, the overwhelming majority these emails should
have already been preserved the State Department email system. providing these emails the Department, Clinton included all she had that were
even potentially work-related including emails about using fax machine asking
for iced tea during meeting erring the side over-inclusion, confirmed
the Department and National Archives determination that over 1250 emails were
personal records (which they have indicated will returned her).
https://www.hillaryclinton.com/briefing/factsheets/2015/07/13/email-facts/
7/11/2016
Updated: The Facts About Hillary Clintons Emails
Case 1:13-cv-01363-EGS Document 102-4 Filed 07/12/16 Page
After providing her work and potentially work-related emails, she chose not keep
her personal, non-work related emails, which definition, are not federal records
and were not requested the Department anyone else.
Why did the State Department ask for assistance collecting records?
Why did the State Department need assistance further meeting its
requirements under the Federal Records Act?
The State Department formally requested the assistance the four previous former
Secretaries letter their representatives dated October 28, 2014, help
further meeting the Department requirements under the Federal Records Act.
The letter stated that September 2013, the National Archives and Records
Administration (NARA) issued new guidance clarifying records management
responsibilities regarding the use personal email accounts for government
business.
While this guidance was issued after all four former Secretaries had departed office,
the Department decided ensure its records were complete possible and
sought copies work emails sent received the Secretaries their own
accounts.
Why did Clinton decide not keep her personal emails? Clinton has said before, these were private, personal messages, including emails
about her daughters wedding plans, her mothers funeral services and condolence
notes, well emails family vacations, yoga routines, and other items one
would typically find their own email account, such offers from retailers, spam,
etc.
Did Clinton delete any emails while facing subpoena?
No. noted, the emails that Clinton chose not keep were personal emails they
were not federal records even work-related and therefore were not subject any
preservation obligation under the Federal Records Act any request. Nor would
they have been subject the subpoena which did not exist the time that was
issued the Benghazi Select Committee some three months later.
Rep. Gowdys subpoena issued March 2015 did not seek, and had nothing
with, her personal, non-work emails nor her server nor the request State
Department last year for her help their own record-keeping. Indeed his March
19th letter, Rep. Gowdy expressly stated was not seeking any emails that were
purely personal nature. March 2015, when Rep. Gowdy issued subpoena Clinton, the State
Department had received all Clintons work-related emails response their
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2014 request, and indeed, had already provided Clintons relevant emails Rep.
Gowdy committee.
Rep. Gowdy, other Republicans, and some members the media have seized
CNN interview with Clinton question her this point. Rep. Gowdy has even gone far say Clinton lying. But and the others are clearly mistaken. Vox reported, [S]he didnt lie about the subpoena. Clinton clearly wasnt
responding the question whether shed ever been subpoenaed the Benghazi
Committee but whether shed been subpoenaed before she wiped the emails from her
server. Additionally, Factcheck.org said its analysis, Clintons denial came
response question about deleting emails while facing subpoena, and Clinton
objected Keilars assumption. Clinton campaign said that the emails were
deleted before she received the subpoena and that was the point Clinton was
making. Politifact added, Suggesting that Clinton deleted emails while facing
subpoena contradicts what know about the controversy far.
Vox went further decry Rep. Gowdys reaction, saying, [T]his ones
particularly absurd gimmick, even for committee that selectively leaking from
depositions and documents justify its existence. there was more extreme
category dissembling than pants fire, now would the time for Politifact
roll out the House Republicans.
Why was the State Department given printed copies?
That the requirement. The instructions regarding electronic mail the Foreign
Affairs Manual (the Departments policy manual) require that until technology
allowing archival capabilities for long-term electronic storage and retrieval email
messages available and installed, those messages warranting preservation
records (for periods longer than current E-mail systems routinely maintain them)
must printed out and filed with related records. FAM 443.3].
Were any work items deleted the course producing the printed
copies?
No.
How many emails were her account? And how many those were
provided the State Department?
Her email account contained total 62,320 sent and received emails from March
2009 February 2013. Based the review process described below, 30,490
these emails were provided the Department, and the remaining 31,830 were
private, personal records.
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How and who decided what should provided the State
Department?
The Federal Records Act puts the obligation the government official determine
what and not federal record. The State Department Foreign Affairs Manual
outlines guidance designed help employees determine which their e-mail
messages must preserved federal records and which may deleted without
further authorization because they are not Federal record materials. FAM 443.1
(c)].
Following conversations with State Department officials and response the State
Departments 2014 letter former Secretaries, Clinton directed her attorneys
assist identifying and preserving all emails that could potentially federal
records. This entailed multi-step process review each email and provide printed
copies Clintons emails the State Department, erring the side including
anything that might even potentially work-related. search was conducted Clintons email account for all emails sent and received
from 2009 her last day office, February 2013.
After this universe was determined, search was conducted for .gov (not just
state.gov) any address field email. This produced over 27,500 emails,
representing more than 90% the 30,490 printed copies that were provided the
State Department. help identify any potential non-.gov correspondence that should included,
search first and last names more than 100 State Department and other U.S.
government officials was performed. This included all Deputy Secretaries, Under
Secretaries, Assistant Secretaries, Ambassadors-at-Large, Special Representatives
and Envoys, members the Secretarys Foreign Policy Advisory Board, and other
senior officials the Secretary, including close aides and staff.
Next, account for non-obvious non-recognizable email addresses
misspellings other idiosyncrasies, the emails were sorted and reviewed both
sender and recipient.
Lastly, number terms were specifically searched for, including: Benghazi and
Libya.
These additional three steps yielded just over another 2,900 emails, including emails
from former Administration officials and long-time friends that may not deemed the State Department federal records. And hundreds these emails actually
had already been forwarded onto the state.gov system and captured real-time.
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With respect materials that the Select Committee has requested, the State
Department has stated that just under 300 emails related Libya were provided
the State Department the Select Committee response November 2014 letter,
which contained broader request for materials than prior requests from the House
Oversight and Government Reform Committee.
Given Clintons practice emailing State Department officials their state.gov
addresses, the State Department already had, and had already provided, the Select
Committee with emails from Clinton August 2014 prior requesting and
receiving printed copies her emails.
The review process described above confirmed Clintons practice emailing State
Department officials their .gov address, with the vast majority the printed
copies work-related emails Clinton provided the State Department simply
duplicating what was already captured the State Departments record-keeping
system real time.
Did Clinton use this account communicate with foreign officials?
During her time State, she communicated with foreign officials person, through
correspondence, and telephone. The review all her emails revealed only one
email with foreign (UK) official.
Did she withhold any work emails? What about the emails that Sid
Blumenthal provided the Select Committee that she did not provide
the State Department?
She provided the State Department with all work and potentially work-related emails
that she had, including all her correspondence with Sid Blumenthal.
understand that Mr. Blumenthal had some emails that Clinton did not have, and
Clinton had some emails that Mr. Blumenthal did not have, but important
note that none those emails provide any new insights the attack our facilities Benghazi. you think third party should have been allowed review what
was turned over the State Department, well the remainder that
was not?
The Federal Records Act puts the obligation the government official, not the
agency third party, determine what and not federal record. The State
Department Foreign Affairs Manual outlines guidance designed help employees
determine which their e-mail messages must preserved federal records and
which may deleted without further authorization because they are not Federal
record materials. FAM 443.1(c)].
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Clinton responded the State Departments request providing approximately
55,000 pages her work and potentially work-related emails. She has also taken the
unprecedented step asking that those emails made public. doing so, she has
sought support the State Departments efforts, fulfill her responsibility recordkeeping, and provide the chance for the public assess the work she and officials
the State Department did during her tenure.
After her work-related emails were identified and preserved, Clinton chose not
keep her private, personal emails that were not federal records, including emails
about her daughters wedding plans, her mothers funeral service, family vacations,
etc.
Government officials are granted the privacy their personal, non-work related
emails, including personal emails .gov accounts. Clinton exercised her privilege
ensure the continued privacy her personal, non-work related emails.
Cant she release the emails she provided the State Department
herself?
Because the printed copies work-related emails she provided the State
Department include federal records the Department, the Department needs
review these emails before they can made public. She called for them made
available soon possible, and glad see the Department has begun releasing
them.
Some the emails released show Clinton emailed aides times
their personal, rather than .gov accounts. Was she trying hide these
communications? Clinton has said before, was her practice email U.S. government officials
their .gov accounts was work-related. This evidenced the emails released
far. reviewing her emails 2014, there was fraction emails with work-related
information sent U.S. government officials personal accounts, and those were
provided the State Department. The overwhelming majority her work-related
emails were .gov accounts.
Where was the server for her email located?
The server for her email was physically located her property, which protected
U.S. Secret Service.
What level encryption was employed? Who was the service provider?
The security and integrity her familys electronic communications was taken
seriously from the onset when was first set for President Clintons team. While
the curiosity about the specifics this set understandable, given what people
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with ill intentions can with such information this day and age, there are
concerns about broadcasting specific technical details about past and current
practices. Suffice say, robust protections were put place and additional
upgrades and techniques employed over time they became available, including
consulting and employing third party experts.
Was the server ever hacked?
No, there evidence there was ever breach.
Was there ever unauthorized intrusion into her email did anyone
else have access it?
No.
What was done after her email was exposed February 2013 after the
hacker known Guccifer hacked Sid Blumenthal account?
While this was not breach Clintons account, because her email address was
exposed, steps were taken that time ensure the security and integrity her
electronic communications, including changing her email address.
Was the State Department able respond requests related FOIA Congressional requests before they received printed copies her
work-related emails?
Yes. the Select Committee has said, the State Department provided the Committee
with relevant emails already had the state.gov system before the State
Department requested any printed copies from former Secretaries, and four months
before the State Department received the printed copies.
For example, the well-publicized hack Sid Blumenthals email account, note
sent Clinton September 12, 2012, was posted online. first blush, one might not
think this exchange would captured the state.gov system. But fact, Clinton
forwarded the email, that very same day, onto the state.gov system. And the email
was produced the State Department the Select Committee, and acknowledged the Select Committee, August 2014.
This example illustrates: when email from non-.gov sender had some
connection work might add the understanding State Department officials, was Clinton practice forward officials their state.gov address; and
the State Department was able search and produce Clinton emails when needed
long before, and unrelated to, receiving the printed copies they were already
captured state.gov accounts.
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EXHIBIT
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SENSITIVE BUT UNCLASSIFIED
January 2016
OFFICE EVALUATIONS AND SPECIAL PROJECTS
Evaluation the Department State FOIA Processes for
Requests Involving the Office the Secretary
View Report
What OIG Reviewed part ongoing efforts respond
requests from the current Secretary State
and several Members Congress, the
Office Inspector General (OIG) evaluated
efforts undertaken the Department
State (Department) ensure that records
are properly produced response
Freedom Information Act (FOIA) requests
involving past and current Secretaries
State. This report addresses (1) the
Department compliance with FOIA
statutory and regulatory requirements and
(2) the effectiveness the processes used the Office the Secretary Executive
Secretariat (S/ES) respond FOIA
requests.
What OIG Recommends
OIG recommends that the Bureau
Administration identify personnel needed
improve the timeliness FOIA responses
and quickly acquire those resources.
OIG recommends further that the
Department develop quality assurance
plan identify and address vulnerabilities the FOIA process.
OIG also makes two recommendations
S/ES ensure that its FOIA searches are
complete and accurate.
Based the Department responses
draft this report, OIG considers all
these recommendations resolved,
pending further action.
What OIG Found
S/ES responsible for coordinating searches for FOIA requests
for records held the Office the Secretary. When FOIA
request that nature received the Department, the Office Information Programs and Services (IPS) within the Bureau
Administration notifies S/ES. S/ES reports its findings IPS,
which then communicates with the FOIA requester.
OIG past and current work demonstrates that Department
leadership has not played meaningful role overseeing
reviewing the quality FOIA responses. The searches performed S/ES not consistently meet statutory and regulatory
requirements for completeness and rarely meet requirements for
timeliness. S/ES currently searches Department email accounts
only FOIA request mentions emails asks for all records, S/ES requested during the course litigation.
However, FOIA and Department guidance require searching email
accounts when relevant records are likely maintained these
accounts. addition, although FOIA requires agencies respond requests within working days, some requests involving the
Office the Secretary have taken more than 500 days process.
These delays are due, part, the Department insufficient
provision personnel IPS handle its caseload.
These problems are compounded the fact that S/ES FOIA
responses are sometimes inaccurate. Officials IPS and attorneys
for the Department identified instances which S/ES reported that
records did not exist, even though was later revealed that such
records did exist. Procedural weaknesses S/ES FOIA processes
appear contributing these deficiencies. For example, S/ES
management not monitoring search results for accuracy, and IPS
has limited ability conduct oversight. S/ES also lacks written
policies and procedures for responding FOIA requests. Finally,
staff S/ES and other components the Office the Secretary
have not taken training offered IPS better understand their
FOIA responsibilities. September 2015, the Department appointed Transparency
Coordinator improve the Department FOIA process, among
other things.
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ESP-16-01
Office Evaluations and Special Projects
January 2016
Evaluation the Department State
FOIA Processes for Requests Involving
the Office the Secretary
IMPORTANT NOTICE: This report intended solely for the official use the Department State the
Broadcasting Board Governors, any agency organization receiving copy directly from the Office Inspector General. secondary distribution may made, whole part, outside the
Department State the Broadcasting Board Governors, them other agencies
organizations, without prior authorization the Inspector General. Public availability the document
will determined the Inspector General under the U.S. Code, U.S.C. 552. Improper disclosure this
report may result criminal, civil, administrative penalties.
SENSITIVE BUT UNCLASSIFIED
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CONTENTS
OBJECTIVES AND METHODOLOGY ..........................................................................................................................
BACKGROUND .................................................................................................................................................................
THE DEPARTMENT DOES NOT CONSISTENTLY MEET FOIA LEGAL AND REGULATORY
REQUIREMENTS ...............................................................................................................................................................
Statutory Deadlines for Processing Requests Are Not Met.....................................................................
S/ES Does Not Routinely Follow Requirements Search Email..........................................................
PROCEDURAL WEAKNESSES CONTRIBUTE DEFICIENT FOIA SEARCHES AND RESPONSES .....10
Current S/ES FOIA Processes Are Inadequate ................................................................................................10
S/ES FOIA Searches and Responses Are Sometimes Inaccurate and Incomplete.........................13
RECOMMENDATIONS .................................................................................................................................................16
APPENDIX MANAGEMENT RESPONSES..........................................................................................................18
ABBREVIATIONS ............................................................................................................................................................24
OIG EVALUATIONS AND SPECIAL PROJECTS TEAM ........................................................................................25
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OBJECTIVES AND METHODOLOGY April 2015, the Office Inspector General (OIG) initiated evaluation address concerns
identified during recent audits and inspections and respond requests from the current
Secretary State and several Members Congress involving variety issues, including the
use non-Departmental systems conduct official business, records preservation
requirements, and Freedom Information Act (FOIA) compliance. This report, which one
several documenting OIG findings these areas, addresses efforts undertaken the
Department State (Department) ensure that government records are properly produced
response FOIA requests involving past and current Secretaries State. Specifically, this report
assesses (1) the Department compliance with FOIA statutory and regulatory requirements and
(2) the effectiveness the processes used the Office the Secretary, Executive Secretariat
(S/ES), respond FOIA requests. OIG has already issued findings related one aspect the
FOIA process used review and release 55,000 pages emails that former Secretary State
Hillary Rodham Clinton provided the Department December 2014.3 OIG will report
separately issues associated with the use non-Departmental systems conduct official
business and records preservation requirements. planning this work, OIG drew FOIA, and related regulations and guidance issued the
Department, and Standards for Internal Control the Federal Government. gain
understanding the Department FOIA processes, controls, and policies and procedures, OIG
interviewed the Under Secretary for Management, the Assistant Secretary for the Bureau
OIG has identified the following issues: inconsistencies across the Department identifying and preserving records,
hacking incidents and other issues affecting the security Department electronic communication, delays and other
problems related processing FOIA requests, and concerns about Ambassador use private email conduct
official business. See OIG, Review State Messaging and Archive Retrieval Toolset and Record Email (ISP-I-15-15,
March 2015); OIG, Audit the Department State Information Security Program (AUD-IT-15-17, October 2014);
OIG, Management Alert: OIG Findings Significant and Recurring Weaknesses the Department State
Information System Security Program (AUD-IT-14-04, November 2013); OIG, Inspection the Bureau
Administration, Global Information Services, Office Information Programs and Services (ISP-I-12-54, September
2012); and OIG, Inspection Embassy Nairobi, Kenya (ISP-I-12-38A, August 2012).
For purposes this work, OIG uses the term non-Departmental systems mean hardware and software that
not owned, provided, monitored, certified the Department State.
OIG, Potential Issues Identified the Office the Inspector General the Intelligence Community Concerning the
Department States Process for the Review Former Secretary Clintons Emails under the Freedom Information
Act (ESP-15-04, July 17, 2015). This report made four recommendations strengthen the Department review
records prior release: (1) requesting staff support from intelligence community FOIA offices assist the
identification equities, (2) facilitating review records FOIA officials ensure that the Department
Classified Network appropriate for storage FOIA material, (3) seeking classification expertise from the interagency act final arbiter there question regarding potentially classified material, and (4) incorporating the
Department Justice into the FOIA process ensure the legal sufficiency review the FOIA exemptions and
redactions. response, the Department agreed with recommendations and but did not agree with
recommendations and
Government Accountability Office (GAO), Standards for Internal Control the Federal Government (GAO-14-704G,
September 2014).
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Administration (A), and various officials the Office Global Information Services (A/GIS) and
S/ES. addition, OIG reviewed the Department annual FOIA reports and obtained and
analyzed list all FOIA requests tasked the Office the Secretary from 1996 2015. OIG
also consulted with the National Archives and Records Administration Office Government
Information Services and reviewed the FOIA procedures other Federal agencies. OIG
conducted this work accordance with quality standards for evaluations set forth the
Council the Inspectors General Integrity and Efficiency.
BACKGROUND
Enacted 1966, FOIA provides that any person has right, enforceable court, obtain
access Federal agency records, except the extent that such records (or portions them)
are protected from public disclosure one the Act exemptions exclusions. The Act
defines record broadly and covers any information that would agency record subject
the requirements [FOIA] when maintained agency any format, including electronic
format.
Upon receipt request for records, the agency required determine whether comply
and notify the requester its determination and the justification for within working
days. The notification adverse determination could denial the request whole part based the statutory exemptions determination that such records exist. The
exemptions include, for example, classified information, privileged communications, and law
enforcement information. adverse determination, the agency must notify the requester that she has right
appeal the determination the head the agency. administrative appeal shall decided
within working days. the appeal not favorable, the requester may then file complaint
Federal district court enjoin the agency from withholding agency records and order the
FOIA, U.S.C. 552. exemption applies, the agency must notify the requester that record exists but exempt
from disclosure. exclusion applies, the agency may notify the requester that responsive records subject
FOIA exist. Exclusions relate the existence ongoing criminal investigation, the names informants, and
classified foreign intelligence counterintelligence international terrorism records. U.S.C. 552(f)(2)(A). U.S.C. 552(a)(6)(A)(i). unusual circumstances, the time limit for responding request appeal may
extended ten working days. U.S.C. 552(a)(6)(B). U.S.C. 552(b).The nine exemptions are (1) information that classified protect national security, (2)
information related solely the internal personnel rules and practices agency, (3) information that prohibited
from disclosure another Federal law, (4) trade secrets commercial financial information that confidential
privileged, (5) privileged communications within between agencies, (6) information that disclosed would
unwarrantedly invade another individuals personal privacy, (7) certain information compiled for law enforcement
purposes, (8) information that concerns the supervision financial institutions, and (9) geological information
wells. U.S.C. 552(a)(6)(A). This includes determination that responsive records exist.
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production any agency records the requester believes the agency improperly withheld.
addition, requester who receives response within days has right file complaint
district court immediately. the Department, the Foreign Affairs Manual (FAM) designates the Office Information
Programs and Services (IPS) responsible for the Department compliance with FOIA. IPS
part the Office Global Information Services, subcomponent the Bureau
Administration. The FAM also designates the Assistant Secretary for Administration the Chief
FOIA Officer, responsible for Department-wide FOIA compliance. The Assistant Secretary for
Administration reports the Under Secretary for Management.
IPS administers the Department Information Access Program, which includes administering all
requests for FOIA records. IPS coordinates, tracks, and reports responses all FOIA requests
for Department records including administrative appeals made connection with such
requests and supposed ensure that responses are timely, accurate, and complete. The
Department FOIA regulations specify that FOIA requests sent IPS.16 The request must
reasonably describe the records sought, should specific, and should include all pertinent
details about the request, including the subject, timeframe, any individuals involved, and reasons
why the Department believed have records the subject the request.
Once FOIA request received, IPS logs into the case-tracking system the Freedom
Information Document Management System (FREEDOMS) and acknowledges the request. IPS
then determines which Department bureaus, offices, overseas posts would possess the
requested records and sends search/review request transmittal (Form DS-1748) each office
FOIA coordinator. The form requires each office provide information the files searched and
their location, the search terms used, and the time period searched, among other information. 2010, the Department issued guidance offices that describes general terms how search take place.
Offices must undertake searches that are reasonably calculated uncover all
relevant materials. Unless otherwise noted given request, offices should
conduct search for records any form, including paper records, email U.S.C. 552(a)(4)(B). alternative litigation, requester may request mediation with the agency, which
conducted the Office Government Information Services the National Archives and Records Administration.
U.S.C. 552(h)(3). U.S.C. 552 (a)(6)(C)(i). FAM 214.2. FAM 211.2(ee). Executive Order 13392 requires the designation Chief FOIA Officer. FAM 211.2(a)
U.S. Department State, FOIA Guidance For State Department Employees (2010), C.F.R. 171.5(a). C.F.R. 171.5(c).
ESP-16-01
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(including email personal folders and attachments email), and other
electronic records servers, workstations, Department databases.
Offices not, however, need search where there reasonable possibility finding responsive records.
Once the search office returns responsive records IPS, IPS determines their relevance the
request and whether any part them may released the requester whether they are
subject one FOIA exemptions. IPS then prepares the formal response the requester
and includes any responsive records that are subject release. requester files
administrative appeal adverse determination, adjudicated the Appeals Review
Panel, consisting retired Foreign Service Officers.
FOIA Guidance For State Department Employees,
Certain offices, including the Bureau Diplomatic Security and the Office Medical Services, are referred
decentralized offices and review their own documents for exemptions. However, these offices must still forward
copy their response the request IPS. C.F.R. 171.52.
ESP-16-01
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SENSITIVE BUT UNCLASSIFIED shown Figure when FOIA
request involves documents produced Secretary State other officials
the Office the Secretary (S), the two
Deputy Secretaries State (D), the Under
Secretary for Political Affairs (P), the
Counselor the Department (C), IPS tasks
S/ES with performing search for relevant
documents. S/ES responsible for the
coordination material presented the
Secretary, Deputy Secretary, and Under
Secretaries; the implementation
decisions made these officials; and the
Departments relations with the White
House, National Security Council, and
other Cabinet agencies.21 S/ES employs
one FOIA Analyst, who reports the GS14 Deputy Director Correspondence,
Records, Staffing (Deputy Director).
The Deputy Director serves the S/ES
FOIA coordinator and reports the
Director Secretariat Staff.
According information provided
S/ES, the FOIA Analyst searches for
relevant documents several databases tasks the relevant office (S,
with performing the search. After the
search completed, the Deputy Director
conducts review the FOIA Analyst
search and the records identified. Finally,
all identified records are sent IPS for
processing, along with signed form DS1748 identifying the databases searched
and the time expended conducting the
search. the request litigation
legal guidance sought regarding the
search, attorney from the Office the
Legal Adviser (L) may review the proposed
response before released the
requester. FAM 022.2. second S/ES employee occasionally assists with FOIA searches addition his regular duties.
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SENSITIVE BUT UNCLASSIFIED September 2015, Secretary State John Kerry named former career Senior Foreign Service
Officer the Department Transparency Coordinator. The Transparency Coordinator will lead
the Department efforts meet the President Managing Government Records directive,
respond OIG recommendations, and work with other agencies and the private sector
explore best practices and new technologies. Secretary Kerry also tasked the Transparency
Coordinator with improving the efficiency the Department systems for responding FOIA
and congressional requests.
THE DEPARTMENT DOES NOT CONSISTENTLY MEET FOIA LEGAL
AND REGULATORY REQUIREMENTS
Statutory Deadlines for Processing Requests Are Not Met
FOIA requires agencies respond FOIA requests within working days. However, the
Department rarely meets this statutory deadline, even for simple requests. Although few
agencies are able meet the 20-day deadline for complex requests, overall compliance
much greater across the Federal Government than the Department. 2014, the average
processing time for simple requests across the Federal Government was 20.5 days, and the
Government-wide average for complex requests was slightly less than 119 days. contrast,
the Department took four and one-half times long average days process simple
requests and almost 535 days process complex requests.
The Department has been particularly late meeting FOIA timelines for requests involving the
Office the Secretary. Table which based IPS data provided OIG, shows the
processing time for FOIA requests that were tasked S/ES and involved the current and past
The Department Justice, which required FOIA develop reporting and performance guidelines, defines
complex request one that involves high volume material requires additional steps process, such the
need search for records multiple locations. example simple request single individual visa record.
example complex request one for all records relating the attacks U.S. diplomatic facilities Benghazi,
Libya, which covers multiple bureaus and offices the Department. See U.S. Department Justice, Guide the
Freedom Information Act (2009).
U.S. Department Justice, Summary Annual FOIA Reports For Fiscal Year 2014, pp. 14.
U.S. Department State, Freedom Information Act Annual Report, Fiscal Year 2014, 28. its 2015 analysis
the performance the Federal agencies that consistently receive the most FOIA requests, the Center for Effective
Government rated the Department the lowest scoring agency far. Its analysis demonstrated that the Department
processed only percent the FOIA requ