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Judicial Watch • JW v State reply 56 d motion 01363

JW v State reply 56 d motion 01363

JW v State reply 56 d motion 01363

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Date Created:January 22, 2016

Date Uploaded to the Library:February 19, 2016

Tags:Kissinger, Reply, record, 01363, Abedin, motion, Benghazi, Secretary, clinton, filed, State Department, White House, plaintiff, request, committee, document, federal, records, Supreme Court, FOIA, department, EPA


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Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
PLAINTIFF JUDICIAL WATCH REPLY
SUPPORT ITS MOTION FOR DISCOVERY
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this reply support its
motion for time take discovery pursuant Rule 56(d) the Federal Rules Civil Procedure. grounds thereof, Plaintiff states follows:
Introduction. its initial brief, Plaintiff demonstrated that undisputed facts and limited, admissible
evidence show that there least reasonable suspicion that the State Department and Mrs.
Clinton deliberately thwarted FOIA creating, using, and concealing the clintonemail.com
record system during Mrs. Clinton entire four years Secretary and for the two years
subsequent. The State Department not only fails address the reasonable suspicion but also
fails refute it. Nor could it. There other reason why agency and the agency head
would create, use, and conceal entire record system used the agency head and least one her closest aides they did not intend make more difficult not impossible for FOIA
requesters gain access the records that system. The State Department has legitimate
explanation.
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
The State Department makes three superficial arguments. First, argues that discovery irrelevant because Plaintiff submitted its FOIA request after Mrs. Clinton removed the records
from the State Department. The State Department misses the forest for the trees with this
assertion. The creation the record system was part the plan circumvent FOIA. Another
part the plan included Mrs. Clinton taking the record system with her when she left office.
Therefore, the date the FOIA request irrelevant and the case law confirms it. Second, the
State Department argues that searched the relevant records because policies allow for
government employees determine what are federal records appropriate for retention.
However, government employee determined what was federal record the
clintonemail.com record system. the extent any determination was made, occurred after
Mrs. Clinton and Ms. Abedin left office. They were not government employees when they
undertook the task. addition, they did not personally review the records. Only Mrs. Clinton
and Ms. Abedin personal attorneys accountable only them, not the State Department
made the determinations. Such process does not comply with the State Department own
regulations. The State Department cannot rely it. Third, the State Department argues that this
case not the appropriate vehicle gain access records responsive Plaintiff FOIA
request. Such argument borders the absurd. FOIA requester cannot challenge the
adequacy the agency search for responsive records, FOIA litigation, not FOIA itself,
becomes meaningless. Plaintiff solely seeks information related the processing Plaintiff
FOIA request.
Plaintiff motion for discovery will allow uncover and present admissible evidence the Court about whether the State Department and Mrs. Clinton deliberately thwarted FOIA. will also allow for discovery the system itself determine possible methods for recovering
-2-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
whatever responsive records may still exist and have not already been searched and reviewed.
The Court therefore should grant Plaintiff motion for time conduct discovery.
II.
The Date the FOIA Request Irrelevant the Critical Issue.
The critical issue before this Court whether the State Department and Mrs. Clinton
deliberately thwarted FOIA creating, using, and concealing the clintonemail.com record
system. not whether Mrs. Clinton removed the record system before after Plaintiff
submitted its FOIA request. Because appears that the purpose for creating and removing the
record system was deliberately thwart FOIA, the date the FOIA request irrelevant the
resolution this case.
The State Department argues that the case law does not support Plaintiff position
because none the cases cited Plaintiff concern the particular situation currently before the
Court. Plaintiff does not dispute that court has had rule case which agency and
the agency head created, used, and concealed entire record system for six years. Plaintiff also
does not dispute that court has had adjudicate case which agency for six years
successfully shielded specific record system from being searched response FOIA
requests.1 Just because court has had resolve issue involving agency brazen the
State Department does not mean that this Court cannot and should not decide the issue before it. the Supreme Court stated Kissinger Reporters Committee for Freedom Press:
There question that withholding must here gauged the time
which the request made since there FOIA obligation retain records prior
The FOIA request issue this case not the only request submitted Plaintiff that
concerns emails Mrs. Clinton and her closest advisors. fact, another FOIA request
submitted Plaintiff while Mrs. Clinton was still office seeks all communications between
the Office the Secretary State and the White House/Executive Office the President
concerning, regarding, relating the photographs Osama bin Laden from about May 2011. See Judicial Watch, Inc. U.S. Department State, Case No. 15-01128-EGS
(D.D.C.).
-3-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page that request. This temporal factor has always governed requests under the
subpoena power well under other access statutes. need not decide
whether this standard might displaced the event that was shown that
agency official purposefully routed document out agency possession order circumvent FOIA request. such issue presented here. also express opinion whether agency withholds documents which have been
wrongfully removed individual after request filed.
445 U.S. 136, 155 (1980). Kissinger simply not dispositive. Because the Supreme Court did
not find that Secretary Kissinger transferred the summaries and transcripts circumvent FOIA, did not resolve the issue currently before this Court: whether the deliberate attempt
agency and the agency head thwart FOIA displaces the general rule. Kissinger suggests that
does, and does its progeny. Chambers U.S. Department Interior, 568 F.3d 998 (D.C. Cir. 2009), the U.S.
Court Appeals for the District Columbia Circuit D.C. Circuit succinctly summarized
how courts this Circuit have construed Kissinger. The D.C. Circuit stated:
Generally, agency has duty retrieve and release documents once
possessed but that legitimately disposed prior the date FOIA request was
received. McGehee Central Intelligence Agency, 697 F.2d 1095, 1103 (D.C.
Cir. 1983) (construing Kissinger, 445 U.S. 155 (1980); see also SafeCard
Services, Inc. Securities and Exchange Commission, 926 F.2d 1197, 1201 (D.C.
Cir. 1991) the agency longer possession the document, for
reason that not itself suspect, then the agency not improperly withholding
that document. Nonetheless, the italicized language suggests and the
Government acknowledged oral argument agency not shielded from
liability intentionally transfers destroys document after has been
requested under FOIA the Privacy Act. See Forsham Califano, 587 F.2d
1128, 1136 (D.C. Cir. 1978) not suggest that mere physical possession
records government agency the sole criterion for determining whether they
fall within the scope FOIA. Obviously government agency cannot
circumvent FOIA transferring physical possession its records
warehouse like bailee. affd, Forsham Harris, 445 U.S. 169 (1980); cf.
Kissinger, 445 U.S. 155 There question that [FOIA] withholding
must here gauged the time which the request made since there
FOIA obligation retain records prior that request. need not decide
whether this standard might displaced the event that was shown that
agency official purposefully routed document out agency possession order circumvent FOIA request. see, e.g., Judicial Watch, Inc. U.S.
-4-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
Department Commerce, Supp. 28, (D.D.C. 1998) (directing
magistrate judge preside over discovery designed explore the extent
which [Department Commerce] illegally destroyed and discarded
responsive information, and possible methods for recovering whatever responsive
information still exists outside the DOCs possession); Landmark Legal
Found. EPA, 272 Supp. 59, (D.D.C. 2003) (noting that earlier
litigation court had held U.S. Environmental Protection Agency contempt and
ordered pay plaintiffs costs and fees caused EPAs contumacious
conduct, namely, destroying potentially responsive material contained hard
drives and email backup tapes
Chambers, 568 F.3d 1004 (D.C. Cir. 2009) (emphasis original). The D.C. Circuit reexamined the issue just last year. DiBacco U.S. Army, after the agency received the FOIA
request, transferred the responsive records the National Archives pursuant the Disclosure
Act. 795 F.3d 178, 192 (D.C. Cir. 2015). Since the Army transfer the records was proper,
the D.C. Circuit concluded that the transfer thus bears colorable resemblance FOIAevasion cases, where agency tries thwart disclosure intentionally moving destroying
responsive documents. Id. 193. reach that conclusion, the D.C. Circuit identified the
critical issue dispute over document that agency longer has the agency
motivation for disposing transferring that document. Id. 192. Because the Army was
simply following the law, the D.C. Circuit ruled the agency favor.
The analysis, however, does not depend whether the records transfer occurred before after the FOIA request was submitted. When the critical issue motivation, the distinction
without difference. Had the Army transferred the records the National Archives before the
FOIA request was received, the D.C. Circuit would have still undertaken the same analysis and
reached the same conclusion. Had the Army transferred the records evade FOIA, the D.C.
Circuit would have also looked the motivation the agency, regardless whether the
transfer occurred before after the FOIA request was received. agency could simply
-5-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
transfer its records out its possession before FOIA request was submitted avoid its FOIA
obligations, FOIA would become meaningless. Defendant position not the law. addition, Mrs. Clinton removal the clintonemail.com record system when she
left office and the State Department allowing her was wrongful and violation
federal law and State Department regulations. See, e.g., U.S.C. 2071(b); U.S.C. 3314, seq.; C.F.R. 1220.10(b), 1220.30, 1220.32(e), 1220.34, 1222.20(b), 1222.24(a)(6),
1230.10, and 1230.12. Even though the unlawful removal occurred before Plaintiff submitted its
FOIA request, Plaintiff does not concede that the State Department does not continue retain
some control over the records the clintonemail.com record system. fact, the State
Department has asserted, and Mrs. Clinton has acknowledged, that departmental authorization
was required before Mrs. Clinton could release any the records stored the server clear
and unambiguous demonstration the State Department control over the records. See Letter
from Undersecretary Patrick Kennedy David Kendall (March 23, 2015), attached
Exhibit see also Letter from David Kendall the Hon. Trey Gowdy (March 27, 2015),
attached Exhibit Secretary Clinton not position produce any those emails the Committee response the subpoena without approval from the State Department.
The simple fact that Mrs. Clinton continues have access the clintonemail.com record
system suggests that constructive trust exists and that the State Department can access and
search the entire system for records responsive Plaintiff FOIA request. See Federal Trade
Commission Capital City Mortgage Corporation, 321 Supp. 16, (D.D.C. 2004).
III.
Government Employees Did Not Determine Which Records the
Clintonemail.com System Were Federal Records Appropriate for Retention.
Besides not resolving the discrete issue before this Court, Kissinger distinguishable
from the instant matter with respect who determined whether record was personal record
-6-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page federal record appropriate for retention and when that determination took place. issue
Kissinger were summaries and transcripts telephone conversations. 445 U.S. 140. During
his tenure Secretary State, Kissinger secretaries generally monitored his telephone
conversations and recorded their contents either shorthand tape. The stenographic notes tapes were used prepare detailed summaries, and sometimes verbatim transcripts,
Kissingers conversations. Id. The summaries and transcripts included conversations official
government business well personal matters. Id. Once complete, the summaries and
transcripts were stored [Kissinger office the State Department personal files. Id.
Towards the end his term, Kissinger sought remove the summaries and transcripts
from the State Department. Id. Before doing so, obtained opinion from the State
Department advising him that the records were not agency records but were his personal papers
which would free take when left office. Id. 140-141. The State Department
conclusion was based its regulation that retiring official may retain papers explicitly
designated filed personal the time origin receipt. Id. 141 (quoting FAM
417.1 (a) (1974)). Kissinger subsequently removed the summaries and transcripts from his
personal files his office.
Kissinger determined that the summaries and transcripts were personal records and not
federal records appropriate for retention. first made such determination when the records
were placed his personal files. made subsequent determination after receiving advice
from the State Department. both instances, was Secretary State, indisputable
government employee.
Mrs. Clinton, the other hand, never made such determination while she was
Secretary State. Neither she nor any other State Department employee reviewed the emails
-7-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
the clintonemail.com record system and determined which records the system were
personal records federal records appropriate for retention. Even though government
employee undertook such review made the necessary determination, the State Department
argues that reasonable for [it] limit its search emails those that the former Secretary
(or her designee) determined were federal records appropriate for retention. Def Mem.
The State Department supports its position with two assertions. First, states, Federal
employees are responsible for determining whether their own emails are federal personal
records. Id. Second, the State Department explains that given her position secretary, Mrs.
Clinton would have had assistance reviewing records had she used state.gov email account.
Id. 10. Plaintiff does not dispute either assertion. fact, both assertions are entirely
consistent with and support Plaintiff request for discovery.
Determining whether record federal record appropriate for retention
governmental function entrusted government officials, not task left unaccountable, private
individuals. the State Department acknowledges, Under policies issued both NARA and
the State Department, individual officers and employees are expected exercise judgment
determine what constitutes federal record, including when comes managing their email.
Id. (emphasis added) (citing NARA Bulletin 2014-06). addition, Mrs. Clinton has
acknowledged that the regulations implementing the Federal Records Act provide that
agencies must distinguish between records and nonrecord materials applying the definition records any agency documentary materials all formats and media. See Exhibit (quoting C.F.R. 1222.12(a)) (emphasis added)). She also has acknowledged that the
regulations further recognize that determining which materials are [a]ppropriate for
preservation, evidence agency activity and therefore within the definition federal
-8-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
record matter entrusted the judgement the agency. Id. (quoting C.F.R.
1222.10(b)(6)) (emphasis added). She acknowledged further that responsibility for exercising
this agency judgment lies with individual officials and employees. Id. There simply
dispute that government employees, not former employees and definitely not personal attorneys former employees, are required determine what records are federal records appropriate for
retention. Plaintiff demonstrated its opening brief, the State Department did not search the
clintonemail.com record system. Nor did provide guidance how the system should have
been searched. With respect Mrs. Clinton emails, Mrs. Clinton personal attorneys
reviewed her emails well established the review process determine whether they were
federal records. There evidence whatsoever that the State Department consulted with
advised Mrs. Clinton personal attorneys about the review process the parameters for the
review process either before after occurred. There also evidence that the State
Department authorized approved the review process. The State Department only appears
know that self-selected portion Mrs. Clinton emails from her tenure the State
Department have been made available. The same true for Ms. Abedin and her emails. the State Department makes clear, Mrs. Clinton and Ms. Abedin had not only the
opportunity but also the right during their employment determine which their emails were
federal records appropriate for retention. They did not so. They forfeited their opportunity
when they left their employment the State Department. The State Department also lost the
opportunity review self-selected subset potentially responsive records. Because
determination was made during their employment, the State Department cannot ask nongovernment employees determine what personal record federal record. Had the State
-9-
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
Department retained possession the entire clintonemail.com record system had Mrs.
Clinton used state.gov email account conduct official government business, the State
Department would not have asked Mrs. Clinton and Ms. Abedin return the State
Department and review their emails.2 The State Department would have had current,
government employee review the records for not only responsiveness Plaintiff FOIA request
but also whether the records were fact federal records. fact, the State Department
employed such review process review the records returned Mrs. Clinton. See Third
Hackett Declaration, submitted support Defendant Motion for Summary Judgment, fn. Former Secretary Clinton provided 53,988 pages, which approximately 1,533 were
identified, consultation with the National Archives and Records Administration, entirely
personal correspondence, that is, documents that are not federal records, leaving approximately
52,455 pages. Instead following their own rules and regulations, the State Department
allowed Mrs. Clinton and Ms. Abedin, non-government employees, decide what records
should searched for responsiveness FOIA request.
The State Department has never reviewed the records the clintonemail.com system determine whether they are federal records and whether they are potentially responsive
Judicial Watch FOIA request. Nor has reviewed the PST files Mrs. Clinton and Ms.
Abedin make these determinations. The State Department cannot say whether has all
federal records from the clintonemail.com system. Because former government employees
and their personal attorneys reviewed all records the clintonemail.com system and
determined which records were federal records, the State Department cannot rely upon those Plaintiff knowledge, the State Department did not ask Ms. Mills Ms. Abedin
return the State Department and review the emails contained their state.gov email
accounts for records potentially responsive Plaintiff FOIA request.
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
determinations conclude that all federal records were returned. The State Department
obligated search the entire clintonemail.com record system determine which records are
responsive Plaintiff FOIA request. Plaintiff demonstrated its initial brief, questions still remain Mrs. Clinton
departure from the State Department with the system, Mrs. Clinton management and
preservation the system after she left the State Department, and the State Department request
for the return records from the system. Questions also remain how Mrs. Clinton and
Ms. Abedin determined which records return the State Department. Therefore, before the
State Department can sufficiently search the entire clintonemail.com record system, Plaintiff
requires discovery uncover and present admissible evidence necessary determine possible
methods for recovering whatever responsive records may still exist.
IV.
This Lawsuit the Appropriate Vehicle Gain Access the Records
Responsive Plaintiff FOIA request.
From the beginning, the State Department processing and response Plaintiff
FOIA request has been fraught with problems. First, although the State Department represented February 2014 that had completed searches the Office the Executive Secretariat,
among other offices, did not inform Plaintiff that had not searched the record system
containing the emails least Mrs. Clinton and Ms. Abedin. Second, after this case was
reopened, the State Department conducted supplemental searches the record systems
searched 2014 and located additional, responsive records. date, the State Department has
not explained why its original search did not yield the same results. Third, after the State
Department moved for summary judgment, located additional sources documents that
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
originated within the Office the Secretary that are reasonably likely contain records
responsive Plaintiff request. Def Mem.
The State Department has not explained what these records are and why the source
records was not located until almost three years after Plaintiff FOIA request was sent. Had
Plaintiff not sued, reopened the case, and continued challenge the State Department search, may have never learned that yet again another record system was not searched for responsive
records. Plaintiff also still does not know whether the system contains any records responsive
Plaintiff FOIA request. All that has been able cobble together from various filings the
State Department different cases that the system is: collection electronic files which resided the Office the Executive
Defendant Motion Stay Production Deadline, Judicial Watch, Inc. U.S.
Department State, Case No. 15-00689-RDM, ECF No. (D.D.C. Jan. 2016); and
office files that were available employees within the Office the Secretary during
former Secretary Clinton tenure well individual files belonging Jake Sullivan
and Cheryl Mills Defendant Motion Stay Briefing Schedule, Judicial Watch, Inc.
U.S. Department State, Case No. 15-00688-RC, ECF No. (D.D.C. Jan. 14, 2016).
The State Department simply has been less than forthcoming about how has handled
and responded Plaintiff FOIA request. Discovery therefore would allow Plaintiff the
opportunity uncover and present admissible evidence how the State Department has
handled and responded Plaintiff FOIA request, including whether the clintonemail.com
record system and other record systems were not searched because the State Department did not
have the ability search them because the State Department determined that those systems
would not likely contain responsive records. this regard, Plaintiff motion and this lawsuit generally are the appropriate vehicles
The discovery this new source records does not affect Plaintiff Motion for
Discovery. The new source does not contain emails. Plaintiff understanding that
contains electronic files such Word documents and PDFs.
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
for Plaintiff gain access the records responsive its FOIA request. The State Department
asserts otherwise. argues that Administrative Procedure Act challenge specifically
Judicial Watch lawsuit against Secretary Kerry more appropriate. See Def Mem. 1113. However, the specific relief sought that case, Judicial Watch, Inc. Kerry, Case No. 1500785-JEB (D.D.C.), court order requiring Secretary Kerry initiate action through the
Attorney General for the recovery records. Complaint, ECF No. (quoting U.S. 3314)). Judicial Watch, that case, seeking for Secretary Kerry notify the Attorney
General about the unlawful removal records, nothing more. That case does not seek resolve
whether the State Department has conducted search reasonable uncover all records
responsive Plaintiff FOIA request. This case does. Plaintiff motion allows for the
discovery admissible evidence whether the State Department and Mrs. Clinton
deliberately thwarted Plaintiff FOIA request creating, using, and concealing the
clintonemail.com record system during Mrs. Clinton entire four years Secretary and for
the two years subsequent.
Although Plaintiff has not yet conducted discovery, least some the relevant facts
cannot reasonably disputed. Those facts show that there least reasonable suspicion
that the State Department and Mrs. Clinton deliberatively thwarted FOIA. discovery reveals
that the State Department and Mrs. Clinton deliberatively thwarted FOIA, FOIA would compel
the State Department take further action. See Chambers, 568 F.3d 1004-1006; see also
SafeCard Services, Inc., 926 F.2d 1201 and Judicial Watch, Inc., Supp. 44. Such
action may include recovering records from nonparties which the State Department transferred
the records or, allowed for the transfer records take place attempt circumvent
FOIA. Id.
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
Additional Evidence that the Knowledge the Clintonemail.com
Record System Was Widespread throughout the State Department. January 15, 2016, the State Department released another FOIA requester
unrelated lawsuit August 30, 2011 email4 from Stephen Mull, then-Executive Secretary
the State Department5, Cheryl Mills, Ms. Abedin, Under Secretary State for Management
Patrick Kennedy, and Monica Hanley discussing ways which the State Department could
resolve issues Mrs. Clinton was having with communications, specifically email. The email,
part, states:
Separately, are working provide the Secretary per her request Department
issued Blackberry replace her personal unit which malfunctioning (possibly
because her personal email server down). will prepare two versions for
her use one with operating State Department email account (which would
mask her identity, but which would also subject FOIA requests), and another
which would just have phone and internet capability.
Exhibit This record unequivocally shows that senior management the State
Department was well aware that Mrs. Clinton was using non-state.gov system conduct
official government business. The email also suggests that senior management was concerned
that records the clintonemail.com system were not being managed way that would
allow for the State Department search those records response FOIA requests. This newly
discovered record again demonstrates that there least reasonable suspicion that the State
Department and Mrs. Clinton deliberately thwarted FOIA creating, using, and concealing the
clintonemail.com record system for six years. Discovery therefore necessary allow
Plaintiff the opportunity uncover and present admissible evidence about how and why Mrs.
The entire email string attached Exhibit
Mr. Mull served from 2010 2012 Executive Secretary the State Department,
coordinating responses wide range crises and managing the Department support for the
Secretary State. Remarks, U.S. Department State (Sept. 17, 2015, available
http://www.state.gov/secretary/remarks/2015/09/247006.htm).
Case 1:13-cv-01363-EGS Document Filed 01/22/16 Page
Clinton and other State Department employees kept the use the system secret from the public
even though the State Department received and responded dozens not hundreds FOIA
requests for Mrs. Clinton records.
VI.
Conclusion.
For the reasons set forth Plaintiff initial brief and the additional reasons stated above,
Plaintiff motion for discovery should granted.
Dated: January 22, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
Case 1:13-cv-01363-EGS Document 51-1 Filed 01/22/16 Page
Exhibit
Case 1:13-cv-01363-EGS Document 51-1 Filed 01/22/16 Page
UNDER SECRETARY STATE
FOR MANAGEMENT
WASHINGTON
MAR 2015
Dear Mr. Kendall, writing reference the approximately 55,000 pages electronic mail
that were identified potential federal records and produced behalf fonner
Secretary Clinton the Department State December 2014 response
its request for assistance under the Federal Records Act. understand that Secretary Clinton would like continue retain copies
the documents assist her responding congressional and related inquiries
regarding the documents and her tenure head the Department. The
Department has consulted with the National Archives and Records Administration
(NARA) and believes that pennitting Secretary Clinton continued access the
documents the public interest will help promote informed discussion.
Accordingly, Secretary Clinton may retain copies the documents provided that:
access limited Secretary Clinton and those directly assisting her responding such inquiries; steps are taken safeguard the documents against loss
unauthorized access; the documents are not released without written authorization the Department; and there agreement return the documents the
Department upon request. Additionally, following NARAs counsel, ask that, the extent the documents are stored electronically, they continue preserved their electronic format. the event that Stat.e Department reviewers detennine
that any document documents is/are classified, additional steps will required safeguard and protect the infonnation. Please note that Secretary Clinton
wishes release any document portion thereof, the Department must approve
such release and first review the document for information that may protected
from disclosure for privilege, privacy other reasons.
Mr. David Ken~all, Esq.,
Williams Connolly LLP,
725 12th Street, NW,
Washington, 20005.
Case 1:13-cv-01363-EGS Document 51-1 Filed 01/22/16 Page
-2- would appreciate the Secretary her designee would confirm agreement the conditions described above writing soon possible.
Very ituly yours~! Kennedy
~rr
Patrick
Case 1:13-cv-01363-EGS Document 51-2 Filed 01/22/16 Page
Exhibit
Case 1:13-cv-01363-EGS Document 51-2 Filed 01/22/16 Page
LAW OFFICES
WILLIAMS CONNOLLY LLP
725 TWELFTH STRJ!ET, N.W.
WASHINGTON, 20005 5901
D,Wll) KlNl>1l.,L
S:DIWA1.P llf~H~,.T W~t.lA.MS 
drawn from the language the Federal Records Act, assist individuals their
exercise judgment. See FAM 443.2(a). The Manual also notes [t]he intention
this guidance not require the preservation every E-mail message. Its purpose
direct thctpreservation those messages that contain information that necessary
Case 1:13-cv-01363-EGS Document 51-2 Filed 01/22/16 Page
The Honorable Trey Gowdy
March 27, 2015
ensure that departmental policies, programs, and activities are adequately documented. FAM 443.2(b); see also C.F.R. 1222.16(b)(3) (2014) (stating that [n]onrecord
materials should purged when longer needed for reference. NARNs approval
not required destroy such materials.).
Thus, design, individual officials and employees indeed serve arbiters
what constitutes federal record, and therefore individual implementers the Federal
Records Act. The Committee implicitly recognized this fact when, its December
2014 letter request for docwnents related Libya and weapons related Libya, asked
Secretary Clinton undertake review the hdr22@clintonemail.com account
determine whether any such documents existed that account. The manner which
Secretary Clinton assisted the State Department fulfilling its responsibilities wider the
Act here consistent with the obligations every federal employee.
The March letter also expresses concern that Secretary Clintons arrangement
apparently also allowed her delete those emails she alone detennined personal
nature. March Letter This statement odds with your recognition
Secretary Clintons personal privacy and that the Committee has not sought, not
seeking, and will not seek possess, review, inspect retain any document email that purely personal nature, such materials are none the Committees business,
and would not assist the Committee discharging its responsibilities. Id. see also
letter from you (Dec. 2014) (To clear, the Committee has interest
any emails, documents other tangible things not related Benghazi.). also
odds with federal regulations implementing the Federal Records Act, which provide that
1ersonal files ~efined documentary materials belonging !ID individual that are
not used conduct agency business-are excluded from the definition ofFederal
records am;/ are not owned the Government. C.F.R. 1220.l (2014) (emphasis
added).
Finally, the March letter expresses concern that the review process for
identifying potential federal records-a process that NARA and the State Department
require undertaken individual officials-was potentially inadequate. The only
specific concerns cited are that search terms may have been relied upon proxy for
docwnent-by-document review. that the process would have excluded from the set
produced the State Department any hybrid e-mails that contained both work-related
and personal materials. These concerns, however, are addressed the fact that the
Secretarys personal attorneys reviewed her email (search tenns were employed aid
to, not proxy for, that review), and that any work-related and potentially workrelated (hybrid) e-mails were provided the Department.
There basis support the proposed third-party review the server that
hosted the hdr22@clintonetnail.com account During the fall of2014, Secretary
Clintons legal representatives reviewed her hdr22@clintonemail.com account for the
Case 1:13-cv-01363-EGS Document 51-2 Filed 01/22/16 Page
The Honorable Trey Gowdy
March 27) 2015
time period from January 21, 2009 through February 2013 After the review was
completed identify and pro1idc the Department State atl the Secretarys workrelated and potentially work-related emails, the Secretary chose not keep her nonreoord personal e-mails and asked that her account (which was longer active use)
set retain only the most recent days e-mail. avoid prolonging discussion
that would academic, have confirmed with the Secretarys support that e-mails
from hdr22@clintonemail.com for the time period January 21, 2009 through February
2013 reside the server any back-up systems associated with the server. Thus)
there are hdr22@clintonemail.com e-mails from Secretary Clintons tenure
Secretary State the server for any review~ even such review were appropriate
legally authorized. set forth above, all Secretary Clintons work-related and potentially workrelated e-mails were provided the State Department December 2014. Secretary
Clinton has asked the Department release these e-mails the public soon
possible. understand that the State Department working completing p.ro.cedurcs
necessary for the release those e-mails, and the Committee-and the public-will have
access them when that process complete.
;//~y fi,.l-
David Kendall
cc:
The Honorable Elijah Cummings
Dana Chipman, Esq.
Heather Sawyer, Esq.
The Honorable Patrick Kennedy
Case 1:13-cv-01363-EGS Document 51-3 Filed 01/22/16 Page
Exhibit
Case 1:13-cv-01363-EGS Document 51-3 Filed 01/22/16 Page
}o5 IED
U.S. Department State Case No. F-2015-12685 Doc No. C05905671 Date: 01/15/2016
eb!:dlo Huma
(:111!1. Srechen
Re: Communications
Tuesday, August 30, 2011 5:34:07
from:
To:
Subject;
Date:
iRELEASE PART
[~7(E;)
Its pretty silly and she knows it.
From: Mull, Stephen
Sent: Tuesday, August 30, 2011 05:18
To: Abedin, Huma
Subject: RE: Communic.ations
.Thanks for reminding all this very helpful context I!!
From: Abedin, Huma
Sent: uesday, August 30, 2011 17:17
To: Mull, Stephen Mills, Cheryl
Cc: Kennedy, Patrick Hanley, Monica
Subject: Re: Communications
REVIEW AUTHORilY: Barbara
Nielsen, Senior Reviewer
Steve lets discuss the state blac.kberry, doesnt make whole lot sense. for the equipment, the comma team was limited some capacity because did not have
authorization from owners residence install equipment. did regardless Additionally,
knows, the team didnt have access the property until couple hours before arrived.
Finally, even the white house attested, this was pretty wid. spread problem, not just affecting
us. should bear that mind.
From: Moll, Stephen
Sent: Tuesday, August 30, 2011 01:39
To: Mills, Cheryl
Cc: Abedln, Huma; Kennedy, Patrick Hanley, Monica
Subject: Communications
Cheryl,
Thanks again for alerting the communications issues the Secretary has been having.
Heres status report: the immediate
~?blerri the ..?..f!!cret~ not.[:>eing_
abte
transferred,j
h~ye heJ calls__
--------
nicians are onsite now the more long term issue, Ive asked our team develop enhanced
UNCLASSIFIED U.S. Department State Case No.
F~2015-12685
Doc No. C05905671 Date: 01/15/2016
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U.S. Department State Case No. F-2015-12685 Doc No. C05905671 Date: 01/15/2016
package capabilities and equipment that would propose deploying with the Secretary closely co-located possible with her when she travel away from her usual
residences. The package will include things that anticipate the normally unexpected such
hurricanes, power outages, earthquakes, locusts, etc, such generators, uninterrupted
power supplies, supplementary satellite capabilities, including satellite phones for when local
infrastructure fails (as did over the weekend).
Separately, are working provide the Secretary per her request Department issued
Blackberry replace her personal unit which malfunctioning (possibly because her
personal email server down). will prepare two versions for her use one with
operating State Department email account (which would mask her identity, but which would
also subject FOIA requests), and another which would just have phone and internet
capability. Were working with Monica hammer out the details what will best meet
the Se~retarys needs.
Please let know you need anything more for now, and Ill touch with the above
longer term options soon.
Thanks,
Steve
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