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Judicial Watch • MRC Kagan Vaughn Declaration Docs 5182011

MRC Kagan Vaughn Declaration Docs 5182011

MRC Kagan Vaughn Declaration Docs 5182011

Page 1: MRC Kagan Vaughn Declaration Docs 5182011

Category:General

Number of Pages:126

Date Created:March 15, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Katyal, Davies, solicitor, Earnest, joshua, kagan, elena, Exemption, redacted, Attorney, email, withheld, SUSAN, Ronald, document, Obama, White House, DOJ, department, Supreme Court, robert, office, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA MEDIA RESEARCH CENTER,  
Plaintiff,  Civil Action  No. 10-2013 (ESH)  

U.S. DEPARTMENT JUSTICE; THE SOLICITOR GENERAL THE UNITED STATES,
 Defendants.
 ____________________________________)
 
DECLARATION VALERIE HALL SUPPORT DEFENDANTS MOTION FOR SUMMARY JUDGMENT Valerie Hall, declare the following true and correct: the Executive Officer the Office the Solicitor General (OSG), United States Department Justice (DOJ). have served this role since December 2009. 
(a) position Executiver Office the OSG, responsible for the day-today administrative operations the OSG. responsible for managing the administrative functions the office, including human resources, information technology (IT), personnel security, financial management and budget, and property management. 

(b) also serve the Freedom Information Act (FOIA) Officer for the OSG. this role, resposible for managing the FOIA requests submitted the OSG, and ensuring our response those requests. This includes meeting with the OSG staff member(s) whom request has been assigned for response, supervising the development and execution strategy and individualized approach for 

responding each FOIA request, and ensuring cooperation from OSG staff and officials every level the OSG whenever necessary. 

(c)	 
Prior joining OSG Executive Office, was employed with another executive branch federal agency for years, where worked the areas administration, management and litigation support, and financial management and budget. make the statements herein the basis personal knowledge, well information acquired the course performing official duties. Office the Solicitor General the United States	 
The Office the Solicitor General the United States primarily responsible for conducting litigation behalf the United States and its agencies the Supreme Court the United States, determining whether the government will appeal seek further review cases involving the United States the lower federal courts, and generally supervising the governments handling litigation the federal appellate courts.  The general functions the Office are: (1) conduct assign and supervise all Supreme Court cases, including appeals, petitions for writs certiorari and briefs opposition thereto, and merits briefs and oral arguments; (2) determine whether, and what extent, the government will seek review any appellate courts (including petitions for rehearing banc and petitions such courts for the issuance extraordinary writs); (3) determine whether the government will file brief amicus curiae whether the government will intervene any appellate court any trial court which the constitutionality Act Congress challenged; and (4) assist the Attorney General and the Deputy Attorney General the development broad Department Justice program policy.  See CFR  0.20.	 
The Solicitor General the United States nominated the President the United States and confirmed vote the United States Senate.  President Barack Obama nominated Elena Kagan Solicitor General; the Senate voted confirm Ms. Kagan Solicitor General March 19, 2009. Ms. Kagan served Solicitor General from March 20, 2009, when she took the oath office Solicitor General, until August 2010, when she was sworn Associate Justice the United States Supreme Court, position for which President Obama nominated Ms. Kagan May 10, 2010.  From May 12, 2010, until August 2010, while Ms. Kagan was preoccupied the U.S. Senate confirmation process, Neal Katyal served Acting Solicitor General matters litigation. After August 2010, became Acting Solicitor General and continues hold that position the date this declaration.	 
The Solicitor General the United States assisted the conduct the legal work the OSG staff attorneys who participate the preparation petitions, briefs, and other papers filed the government the Supreme Court. 

(a)	 
There are four Deputy Solicitors General, one whom designated the Principal Deputy Solicitor General. The remaining staff attorneys the OSG are Assistants the Solicitor General and five recent law-school graduates who serve one-year positions. 

(b)	 
The name the Solicitor General (or Acting Solicitor General) appears the signature block every document that the OSG files the Supreme Court.  For many filings with the Court, the signature block also contains the names Deputy Solicitor General and Assistant the Solicitor General; the signature blocks for these filings may also contain the name names other Department Justice attorneys and the name names attorneys within other federal government components the interests which may affected the Supreme Courts resolution the case. For some filings, however, only the name the Solicitor General (or Acting Solicitor General) appears the signature block. Moreover, even where the name Deputy Solicitor General and/or Assistant the Solicitor General appears the signature block, the signature block particular brief may not always contain the name each staff attorney the OSG who made meaningful contributions the brief. 

Plaintiffs FOIA Request letter dated May 25, 2010, Terence Jeffrey, editor chief CNSNews.com, division the Media Research Center (MRC the requestor), submitted FOIA request the OSG seeking records that the request described as: 
(a)	 
Any communication from Solicitor General Elena Kagan and any record notation any meeting attended personally electronically Solicitor General Elena Kagan which the administrations health-care reform plan was topic; 

(b)	 
Any communication from Solicitor General Elena Kagan and any record notation any meeting attended personally electronically Solicitor General Elena Kagan which [any] legal challenge[] the health-care reform bill signed President Barack Obama was topic; and 

(c)	 
Any communication from Solicitor General Elena Kagan and any record notation any meeting attended personally electronically
 
Solicitor General Elena Kagan which the question whether Solicitor General Elena Kagan ought recuse herself from involvement any particular case her role [S]olicitor [G]eneral due the prospect that might later come before her were she confirmed seat federal court was discussed. 
See Ex. Compl.  This letter was received, via electronic mail, the OSG May 
25, 2010. letter dated June 22, 2010, responded Mr. Jeffrey CNSNews.com, stating that Mr. Jeffreys request had been denied, explaining that the OSG had determined that any documents [Mr. Jeffrey] seek[s] are exempt from disclosure for the following reason: U.S.C. [] 552(b)(5): Information consists inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency. See Ex. Compl. letter dated June 25, 2010, sent U.S. mail and electronic mail, advised Mr. Jeffrey that the letter dated June 22, 2010 containing her signature, and stating that the records [Mr. Jeffrey] seek[s] are exempt was sent error.  See Ex. Compl.1 the June 25, 2010 letter, asked Mr. Jeffrey clarify two aspects his May 25, 2010 FOIA request. Id.  First, asked Mr. Jeffrey clarify the phrase the administrations healthcare reform plan the first category records sought his request.  Id. Second,  The letter dated June 25, 2010, containing signature, contains typographical error. 

According the June 25, 2010 letter, the June 22, 2010 letter stated that the records Mr. Jeffrey 
seeks are exempt under U.S.C. [] 552(b)(2).  See Ex. Compl.  However, the June 22, 
2010 letter actually stated that the records Mr. Jeffrey seeks are exempt under U.S.C. 
 552(b)(5). The reference U.S.C.  552(b)(2) was error.
 
indicated that it [was] unclear from [Mr. Jeffreys] request whether the third category records, like the other two, focuses health-care, and whether the particular cases referred that third category thus are cases concerning the health-care legislation and sought clarification the scope [Mr. Jeffreys] request this point.  Id. letter dated June 25, 2010, response letter the same date, Mr. Jeffrey clarified the first and third categories his request. With respect the first category, Mr. Jeffrey stated that his request sought: Any communication from Solicitor General Elena Kagan and any record notation any meeting attended personally electronically Solicitor General Elena Kagan which then-pending legislative healthcare proposals were discussed. See Ex. Compl.  With respect the third category, Mr. Jeffrey clarified that this category his request does not focus solely cases concerning health-care legislation but literally any particular case. Id. The Search for Records Responsive MRCs FOIA Request 
10.	 
The search for records responsive MRCs FOIA request was conducted two stages. The first stage occured around June 24, 2010. The second stage occured January and February 2011. 

11.	 
MRCs FOIA request sought only two general types documents: communication[s] and record[s] notation[s] meeting[s.] 

(a) the OSG recent years, including during the time period issue this request, most written communications and most records meetings appointments are typically electronic rather than paper format.  The OSG does not generally retain paper copies these electronic documents. 

(b)	 
When individual employed OSG ends her employment OSG, that
 
individuals computer account the Department Justice computer system deactivated and placed into electronic file archive.  All the files created that individual her user drive, that have been saved and not deleted that time, are downloaded into protected folder.  Access these files limited authorized systems administrators individual employees as-needed basis, when granted official permission. 
(c)	 
When individual employed OSG ends her employment OSG, that individuals email address and account the Department Justice email system deactivated and the emails the account are placed the Enterprise Vault (EV), email archive.  The maintains the email account any former OSG employee was the date that employees employment OSG was terminated.  The also serves archive for any emails that current OSG and other Department Justice employees choose remove from their active electronic mailboxes; any email current employee chooses move into the remains accessible that employee all times but does not take space the employees active electronic mailbox. 

(d)	 
When individual employed OSG ends her employment OSG, that individuals paper files are sorted and preserved according federal government and Department Justice document retention policies. 

12. after June 24, 2010, OSG employee who served the confidential assistant then-Solicitor General Kagan conducted search Ms. Kagans email system for records responsive MRCs FOIA request. 
(a) result this search, 115 pages material potentially responsive the
 
request was located. The OSG employee who performed this search ended her employment with the Department Justice August 2010.  The OSG later determined that did not have sufficiently detailed documentation specifying the scope the search conducted this former employee. 
(b) after June 24, 2010, then-Solicitor General Kagans confidential assistant conducted manual search Ms. Kagans paper files.  This search did not result the identification any additional potentially responsive material. 
13. fall 2010, current OSG employees began processing these documents for responsiveness and apply relevant redactions information covered one the FOIAs nine statutory exemptions.  However, due the lack sufficient documentation concerning the search described paragraph 12(a), supra, January 23, 2011, the OSG initiated new search for records responsive MRCs FOIA request. This search was completed February 2011. 
(a)	 
For the reasons explained paragraph 12(a), supra, the OSG determined that search the email and computer files, including the electronic calendar files, Ms. Kagan, her confidential assistant, and then-Principal Deputy Solicitor General Neal Katyal was reasonably calculated locate any material responsive MRCs request. 

(b)	 
The OSG determined that all responsive records would dated before August 2010, the date which then-Solicitor General Kagan became Associate Justice Kagan, thereby terminating her employment with the DOJ. Therefore, the search sought records dated later than August 2010. 

(c) search the three email accounts, OSG conducted search each officials email the Enterprise Vault (EV) and search Mr. Katyals active email account. 

(d)	 
The searches the email accounts and computer files Ms. Kagan and her confidential assistant OSG were conducted using the following search terms: recus* (through the use the wildcard character, search using this term would capture any records containing words beginning with recus including, but not limited to, recuse, recused, recusal, and recusing); healthcare; health care search using this term also would capture any records containing the compound word health-care); affordable care; patient protection; ACA search using this term also would capture any records containing the acronyms PPACA and PPAACA, both common acronyms for the health-care reform legislation considered Congress, including the version passed Congress and signed President Obama); and PPA search using this term also would capture any records containing the acronyms PPACA, PPAC, PPAACA, and PPAAC, common acronyms for the health-care reform legislation considered Congress, including the version passed Congress and signed President Obama). 

(e)	 
The search the email account and computer files Mr. Katyal was conducted two stages. the first stage, the search was conducted using the same search terms described paragraph 14(d), supra, combination with the term Elena. the second stage, the search was conducted using the same search terms described paragraph 14(d), supra, combination with the term Kagan.
 
14.	 The new search was completed February 2011.  Because the new search was conducted using broad search terms, described paragraph 14(d), supra, the search resulted the identification approximately 1400 pages potentially responsive material.  Upon review the potentially responsive material, OSG staff determined that the vast majority the materials captured the new search were not relevant MRCs request. 
(a)	 
Also upon review the potentially responsive material, OSG staff confirmed that all 115 pages that were initially located then-Solicitor General Kagans confidential assistant were also identified the new search. 

(b)	 
Within the set documents identified potentially responsive, OSG staff determined that pages consisted emails sent received Ms. Kagan her individual capacity nominee the United States Supreme Court.2 These personal emails were communications between Ms. Kagan and the members the White House staff who were responsible for preparing Ms. Kagan for the confirmation process the U.S. Senate.  Department Justice policy recognizes that some emails sent received Department employees using email address the Department Justice email system are personal. fact, the Department Justice specifically authorizes Department Justice employees Although the emails consisted printed pages, the pages consist email conversation among group people.  These pages actually represent email transmissions which are largely repetitive each other because each email contains new message well the set messages that  preceded the new message.  The Agency has identified, and listed the attached Vaughn index, the pages out the pages that together comprise all the unique messages contained the email transmissions. See Vaughn Index, attached hereto Exhibit
 
use their email account the Department Justice email system for limited personal use. DOJ Order 2740.1A (attached heret Exhibit provides, some personal use government computer systems permitted accordance with existing policy personal use government property, where there negligible cost the government and interference with official business. See Ex. (DOJ Order 2740.1A (Dec. 2008)), This policy was effect from December 2008 through November 30, 2010, time period that includes the entire time Ms. Kagans tenure Solicitor General the United States.3 Under DOJ Order 2740.1A, government computer systems are considered includ[e] but not [be] limited Internet e-mail, departmental e-mail, word processing systems, and connections Internet sites.  Id. 
(i)	 Thirty-five the pages comprised email exchange relating meetings and hearings that was anticipated Ms. Kagan would have with 
U.S. Senators. this email exchange, Ms. Kagan and the White House staff members formulated and revised draft answer anticipated question that Ms. Kagan might have been asked Senators during the confirmation process.  The anticipated question and draft answer related Ms. Kagans recusal decisions Solicitor General. OSG staff reviewed the record Ms. Kagans hearing before the Senate Committee the Judiciary, including the questions the record posed members the 
Order 2740.1A (Nov. 30, 2010) (attached hereto Ex. C). The November 30, 2010 version 
the policy does not alter the Departments policy permitting some personal use government 
computer systems.
 
Committee, and ascertained that Ms. Kagan was not asked the question contemplated the email exchange and that Ms. Kagan did not provide any version the draft answer during the confirmation process. 
(ii)	 The remaining page the pages consists one-page email sent Ms. Kagans confidential assistant Ms. Kagans behalf member the White House staff containing draft answer question from Judicial Nomination Questionnaire, form which all nominees the 
U.S. Supreme Court must complete and submit the U.S. Senate part the confirmation process.  OSG staff compared this draft answer the final version Ms. Kagans Judicial Nomination Questionnaire, available online http://judiciary.senate.gov/nominations/SupremeCourt/SupremeCourt.cfm, and ascertained that the version the email is, fact, draft version that was not adopted final. 
(c) conducting the new search former Solicitor General Kagans paper files, OSG staff reviewed document listing the contents those archived files.  Upon review this contents list, OSG staff determined that none the contents former Solicitor General Kagans paper files would responsive MRCs request. Also, based upon the review the electronic files identified the new search potentially responsive MRCs request, OSG staff determined that former Solicitor General Kagans paper files were not reasonably likely contain any material responsive MRCs request.
 
15. March 15, 2011, the OSG released MRC records responsive MRCs request. The OSG explained that the agency records that include least some material responsive the FOIA request constitute total pages records.  Twenty (20) pages those records were released MRC full, and pages were released MRC with some material redacted.  The remaining pages were withheld full. that date, the OSG, its discretion, also released MRC pages documents that are not responsive MRCs request. Three (3) these pages were released full, and were released MRC with redactions applied pursuant one more FOIAs exemptions.  The OSG did not release MRC any the pages documents that consist Ms. Kagans personal emails, described paragraph 14(b), supra. See Letter from Valerie Hall, Executive Officer, Office the Solicitor General, U.S. Department Justice, Terence Jeffrey, CNSNews.com (March 15, 2011), attached hereto Exhibit November 30, 2010, DOJ Order 2740.1A (Dec. 2008) was replaced with DOJ 

Explanation Withheld Material 
16.	 Accompanying this Declaration Vaughn Index that explains the FOIA exemptions that apply material the OSG has withheld response MRCs FOIA request.  See Vaughn Index, attached hereto Exhibit set out more fully the attached Vaughn Index, the following FOIA exemptions apply documents withheld from the material that the OSG provided MRC response the FOIA request issue this litigation. FOIA Exemption 2Internal Administrative Matters 
17.	 Portions certain documents were withheld pursuant Exemption  FOIA Exemption exempts from mandatory disclosure information related solely the internal personnel rules and practices agency. U.S.C.  552(b)(2).
 
understanding that FOIA Exemption has been held protect trivial administrative matters genuine public interest and encompasses information that both relates agencys rules and practices dealing with employee relations human resources and contains information that internal; that is, that the agency typically keeps the information itself for its own use. 
18.	 The OSG has withheld two types Exemption information concerning trivial administrative matters genuine public interest: 
(a) internal office telephone number.  The telephone number withheld number not published any public directory. 

(b)	 
Email addresses.  The email addresses withheld are not published any public 

directory. All the information that the OSG has withheld pursuant Exemption has also been withheld pursuant Exemption described paragraph 22, infra. FOIA Exemption 5Privileged Inter- and Intra-Agency Communications 
19.	 Portions certain documents were withheld pursuant Exemption  FOIA Exemption exempts from mandatory disclosure inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency. U.S.C.  552(b)(5). understanding that, under FOIA Exemption the protections from disclosure traditionally afforded certain documents pursuant evidentiary privileges (such the attorney-client, attorney work product, deliberative process privileges), the context civil discovery. 
(a) qualify for protection under Exemption pursuant the deliberative process privilege, the information must pre-decisional and part the agencys
 
deliberative process. understand that information considered pre-decisional prepared order assist agency employee arriving official agency decision, and information considered part the agencys deliberative process its disclosure would expose the agencys decision-making process such way discourage candid discussion within the agency, thereby undermining the agencys ability fulfill its mission and objectives. 
(b) qualify for protection under Exemption pursuant the attorney work-product doctrine, the information protects from disclosure documents and tangible things that are prepared anticipation litigation .  See Fed. Civ. 26(b)(3). understand that information considered attorney work-product prepared attorney the context ongoing litigation reasonable anticipation future litigation, and prepared because that actual threatened litigation. 
20.	 The OSG has withheld the following information that protected the deliberative process privilege: 
(a)	 The OSG has withheld certain documents portions documents that contain material reflecting non-final inter- intra-agency deliberations.  The withheld information reflects discussions between Department Justice employees working prepare the Department Justices analysis and response proposed legislation. The materials withheld were three different preliminary draft versions Department responses members Congress providing the Departments views proposed legislation; two versions were letter form and the third was not. All three drafts were circulated together Department Justice officials,
 
inviting Department officials make final decision about the Departments response. 
(b)	 
The OSG has withheld two documents containing agencys internal analysis proposed agency action that was never taken. The two documents contain the agencys detailed analysis, formulated the agency consideration the proposed action. 

(c)	 
The OSG has withheld from four pages emails material describing predecisional advice from the Office Legal Counsel Executive Branch official the subject recusals and reflecting deliberations between staff member the Executive Office the President and the Office Legal Counsel regarding this predecisional advice. 

(d)	 
The OSG has not released pages personal emails sent received Ms. Kagan her individual capacity nominee the United States Supreme Court because they are not agency records subject FOIA. Those records also would come within the deliberative process privilege even they were agency records because they contain draft answers question was anticipated that Ms. Kagan might have been asked Senators during the confirmation process, and question from the Judicial Nomination Questionnaire that all nominees the U.S. Supreme Court must complete and submit the U.S. Senate part the confirmation process. described paragraph 14(b), supra, review the record Ms. Kagans hearing before the Senate Committee the Judiciary, including the questions the record posed members the Committee, reveals that the anticipated question was never asked Ms. Kagan, nor was any version the draft answer provided Ms. Kagan during the confirmation process. Similarly, review the final version Ms. Kagans Judicial Nomination Questionnaire, reveals that the version the email is, fact, draft version that was not adopted final. See paragraph 14(b), supra. 
21.	 The OSG has withheld the following information that protected the attorney work-product doctrine: the OSG has redacted from certain documents material reflecting the thoughts Department Justice attorneys legal issues, arguments, and strategy concerning anticipated ongoing matters litigation.  Some the material redacted was prepared the context actual, ongoing cases before the Supreme Court which the OSG was involved. The remainder the material redacted consists single word, phrase, sentence referencing potential categories legal issues that might involved anticipated legal challenges health-care legislation that had not yet been enacted that Department Justice attorneys, including those OSG, believed (at the time the creation the redacted information) were reasonably likely occur. FOIA Exemption 6Personal Information 
22.	 Portions certain documents were withheld pursuant Exemption  FOIA Exemption exempts from mandatory disclosure personnel and medical files and similar files when the disclosure such information would constitute clearly unwarranted invasion personal privacy. U.S.C.  552(b)(6). Under FOIA Exemption personal information about individuals located agency records, such individual would have reasonable expectation privacy that sufficiently outweighs the public interest the release that information protected from mandatory disclosure. understand that such personal information protected applies particular individuals and its release
 
would constitute clearly unwarranted invasion their personal privacy.  The personal information issue here appeared email messages sent from agency personnel, and consists several types personal information. 
23.	 Some personal information concerning individuals has been redacted from the emails released. some cases, the personal information consists the names private citizens who serve attorneys for private parties litigation which the government involved. other cases, the personal information consists the personal and office contact information government officials.  Federal employees have protectable privacy interest not being subjected annoyance harassment such could from release their private, non-government non-published government contact information.  Finally, some cases, this personal information consists the names non-attorney career employees within the OSG and Assistants the Solicitor General, who are relatively low the agency hierarchy, explained paragraph 5(a), supra. These lower-level career employees have personal privacy interest keeping from the public eye their involvement particular matter, especially the employees role that matter has not become public, always the case for non-attorney employees the OSG and often the case for Assistants the Solicitor General, explained paragraph 5(c), supra. Because the high-profile and sometimes controversial nature health-care reform and related litigation and other litigation the U.S. Supreme Court, revealing the names low-level employees who have been involved working these issues may expose those employees undue annoyance harassment.  Where redactions such personal information federal employees have been applied, the substance the communications, the extent relates official government business,
 
EXHIBIT
 
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126

Media Research Ctr. Department Justice 
Civ. Action No. 10-2013 (D.D.C.)
 
Index Withholdings 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  Email chain  Neal Katyal  Thomas Perrelli (cc: Elena Kagan)  Re: Health Care  3/18/2010  (b)(5)  The redacted information contains Department Justice (DOJ) attorneys thoughts, before the Patient Protection and Affordable Care Act was passed, what categories legal arguments may arise and should prepared the anticipated lawsuit referenced the email exchange.  
Thomas Perrelli  Neal Katyal  Re: Health Care  3/17/2010  
Neal Katyal  Thomas Perrelli  Health Care  3/17/2010  
4-6  Email chain  Neal Katyal  Elena Kagan  Re: Health care litigation meeting  3/21/2010  (b)(5) (b)(6)  The redacted information includes DOJ attorneys thoughts legal issue discussed internal government meeting regarding the expected litigation referenced the email exchange. addition, Justice Department attorneys personal phone number has been withheld for privacy reasons.  
Elena Kagan  Neal Katyal  Re: Health care litigation meeting  3/21/2010  
Neal Katyal  Elena Kagan  FW: Health care litigation meeting  3/21/2010  
Thomas Perrelli  Neal Katyal, Ian Gershengorn, Beth Brinkman, Tony West, Brian Martinez, Mala Adiga, Joseph Guerra, Stuart Delery, Jonathan Cederbaum, Chad Golder, Lisa Monaco (cc: Currie Gunn, Joseph Guerra)  Health care litigation meeting  3/21/2010  

Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
13-17  Email chain  Edwin Kneedler  Elena Kagan  Re: week report  3/22/2010  (b)(5) (b)(6)  The redacted information contains thoughts DOJ attorneys regarding internal government deliberations related cases that were then pending before the United States Supreme Court. addition, the names three DOJ attorneys have been withheld for privacy reasons.  
Elena Kagan  Edwin Kneedler  Re: week report  3/22/2010  
Edwin Kneedler  Neal Katyal, Elena Kagan, Michael Dreeben, Malcolm Stewart  RE: week report  3/22/2010  
Neal Katyal  Edwin Kneedler, Elena Kagan, Michael Dreeben, Malcolm Stewart  RE: week report  3/22/2010  
18-19  Email chain  Malcolm Stewart  Elena Kagan  FW: Cipro brief  DOJ comments Request for comments 369, the Preserve Access Affordable Generics Act (Reverse Payments)  6/19/2009  (b)(5) (b)(6)  The redacted information contains legal analyses and discussions DOJ attorneys regarding proposed Senate bill, including discussion the DOJs preliminary views the proposed legislation and draft material containing the Departments potential responses Senator Kohls request for comments the bill. addition, the name DOJ attorney has been withheld for privacy reasons.  
Marisa Chun  Malcolm Stewart  Cipro brief  DOJ comments Request for comments 369, the Preserve Access Affordable Generics Act (Reverse Payments)  6/18/2009  

Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
18-19 (contd)  James Garland  Marisa Chun, Donald Verrilli, Judy Appelbaum, Gene Kimmelman, Tali Farhadian (cc: Robert Potter, Karyn Temple Claggett, Brian Hauck)  RE: Kohl Response  Input from ATR appellate  6/18/2009  
[Redacted]  Marisa Chun, Brain Hauck, Sam Hirsch, Donald Verrilli, Charlotte Burrows  FOR FINAL APPROVAL  DOJ comments Request for comments 369, the Preserve Access Affordable Generics Act (Reverse Payments)  6/11/2009  
20-22  Draft letter (Attached Docs. 1819)  Ronald Weich, Assistant Attorney General  Senator Herb Kohl (cc: Senator Patrick Leahy, Senator Orrin Hatch)  DOJs comments proposed Senate bill  (b)(5)  This document draft letter from the DOJ Senator Kohl which expresses the DOJs views proposed Senate bill. Because the letter, which contains extensive analysis the bill DOJ attorneys, was preliminary draft, has been withheld pursuant Exemption  
23-25  Draft letter (Attached Docs. 1819)  Ronald Weich, Assistant Attorney General  Senator Herb Kohl (cc: Senator Orrin Hatch)  DOJs comments proposed Senate bill  (b)(5)  This document draft letter from the DOJ Senator Kohl which expresses the DOJs views proposed Senate bill. Because the letter, which contains extensive analysis the bill DOJ attorneys, was preliminary draft, has been withheld pursuant Exemption  

Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
38-39  Draft memorandu (Attached Docs. 1819)  Department Justice  N/A  DOJs comments proposed House bill.  (b)(5)  This document draft memorandum which expresses the DOJs views proposed House bill. Because the memorandum, which contains extensive analysis the bill DOJ attorneys, was preliminary draft, has been withheld pursuant the deliberative process privilege.  
40-42  Memorandu  Neal Katyal  The Solicitor General (Elena Kagan)  Re: Current Cases That [SG Kagan Has] Worked  5/13/2010  (b)(5) (b)(6)  The redacted information contains DOJ attorneys thoughts the formulation the governments litigation position two cases that were pending before the United States Supreme Court. addition, the names two individuals who are not federal employees have been withheld for privacy reasons.  Email chain  [Redacted]  Neal Katyal  RE: document  5/13/2010  (b)(6)  The name DOJ employee has been withheld for privacy reasons.  
Neal Katyal  [Redacted]  document  5/13/2010  
44-47  Memorandu (Attached Doc. 43)  Neal Katyal  The Solicitor General (Elena Kagan)  Re: Current Cases That [SG Kagan Has] Worked  5/13/2010  (b)(5) (b)(6)  The redacted information contains DOJ attorneys thoughts the formulation the governments litigation position two cases that were pending before the United States Supreme Court. addition, the names two individuals who are not federal employees have been withheld for privacy reasons.  

Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
48-49  Email Chain  Tracy Schmaler  Elena Kagan  RE: HCR litigation  5/17/2010  (b)(2) (b)(6) DOJ attorneys office phone number has been withheld for privacy reasons, and because trivial administrative nature and genuine public interest. DOJ employees name has also been withheld for privacy reasons.  
Neal Katyal  Elena Kagan  RE: HCR litigation  5/17/2010  
Elena Kagan  Neal Katyal, Tracy Schmaler  RE: HCR litigation  5/17/2010  
Neal Katyal  Elena Kagan  FW: HCR litigation  5/17/2010  
Neal Katyal  Tracey Schmaler  Re: HCR litigation  5/17/2010  
Tracey Schmaler  Neal Katyal  HCR litigation  5/17/2010  
50-51  Email chain  Neal Katyal  Elena Kagan  Fw: connecting you two  6/15/2010  Nonresponsive (b)(5) (b)(6)  Six emails this email chain have been withheld because they not contain information responsive plaintiffs FOIA request and, the alternative, pursuant Exemption those emails, DOJ attorney and executive branch official discuss the DOJs strategy regarding media inquiry that was unrelated the subjects identified plaintiffs FOIA request. DOJ employees name has also been withheld for privacy reasons.  

Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
52-53  Email chain  Elena Kagan  Susan Davies, Joshua Earnest  Fw: connecting you two  6/15/2010  Nonresponsive (b)(2) (b)(5) (b)(6)  The email addresses two White House employees have been withheld for privacy reasons, and because they are trivial administrative nature and are genuine public interest. DOJ employees name has also been withheld for privacy reasons. addition, six emails this email chain have been withheld because they not contain information responsive plaintiffs FOIA request and, the alternative, pursuant Exemption those emails, DOJ attorney and executive branch official discuss the DOJs strategy regarding media inquiry that unrelated the subjects identified plaintiffs FOIA request.  
Neal Katyal  Elena Kagan  Fw: connecting you two  6/15/2010  

Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
54-57  Email chain  Elena Kagan  Neal Katyal  Re: Recusals (not urgent)  5/11/2010  Nonresponsive (b)(5)  The redacted information describes and reflects deliberations between staff member the Executive Office the President and the Office Legal Counsel regarding predecisional advice another Executive Branch official the subject recusals.  
Neal Katyal  Elena Kagan  Re: Recusals (not urgent)  5/11/2010  
Elena Kagan  Neal Katyal  Re: Recusals (not urgent)  5/11/2010  
Neal Katyal  Elena Kagan  Recusals (not urgent)  5/11/2010  
58-59*  Email chain  Elena Kagan  Edwin Kneedler  Re: Cvsgs  4/2/2010  Nonresponsive (b)(5) (b)(6)  The redacted information includes DOJ attorneys thoughts specific legal arguments and strategies relevant one the cases cited the email exchange. addition, the names two DOJ attorneys have been withheld for privacy reasons.  
Edwin Kneedler  Elena Kagan  re: Cvsgs  4/2/2010  
Elena Kagan  Edwin Kneedler  Cvsgs  4/2/2010  
60*  Email chain  Neal Katyal  Brian Hauck  RE: Health Care Defense  1/8/2010  Nonresponsive  
Brian Hauck  Neal Katyal  Health Care Defense  1/8/2010
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
61*  Email chain  Neal Katyal  Brian Hauck, [Redacted]  RE: Health Care Defense  1/8/2010  Nonresponsive (b)(6)  The name DOJ attorney has been withheld for privacy reasons.  
Brian Hauck  Neal Katyal  Health Care Defense  1/8/2010  
62-64*  Email chain  Edwin Kneedler  Neal Katyal  RE: CVSGs  5/11/2010  Nonresponsive (b)(6)  The names two DOJ attorneys have been withheld for privacy reasons.  
Neal Katyal  Edwin Kneedler  RE: CVSGs  5/11/2010  
Edwin Kneedler  Neal Katyal  RE: CVSGs  5/11/2010  
Neal Katyal  Edwin Kneedler, Malcolm Stewart  CVSGs  5/11/2010  
65-66  Email chain  Edwin Kneedler  Neal Katyal  RE: Elenas name briefs, opps, appeal recs  5/12/2010  Nonresponsive (b)(5) (b)(6)  The redacted information contains DOJ attorneys thoughts the formulation the governments litigation position two cases that were pending before the United States Supreme Court and internal legal analysis. Also redacted another DOJ components thoughts DOJ policy. addition, the names two DOJ employees have been withheld for privacy reasons.  
Neal Katyal  Michael Dreeben, Edwin Kneedler  FW: Elenas name briefs, opps, appeal recs  5/12/2010  
Neal Katyal  Edwin Kneedler, Malcolm Stewart, Michael Dreeben, [Redacted], [Redacted]  Elenas name briefs, opps, appeal recs  5/12/2010
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
67-68*  Email chain  Tracy Schmaler  Neal Katyal  RE: HCR litigation  5/17/2010  Nonresponsive  
Neal Katyal  Tracy Schmaler, Neal Katyal  RE: HCR litigation  5/17/2010  
Neal Katyal  Tracy Schmaler  RE: HCR litigation  5/17/2010  
Tracy Schmaler  Neal Katyal  HCR litigation  5/17/2010  
69-71  Email chain  Neal Katyal  [Redacted]  Re: Health Care Defense  1/13/2010  Nonresponsive (b)(5) (b)(6)  The redacted information includes question from one DOJ attorney another legal issue related the litigation referenced the email; also includes DOJ attorneys analysis legal issues that could arise that litigation. addition, the name DOJ attorney has been withheld for privacy reasons.  
[Redacted]  Neal Katyal  RE: Health Care Defense  1/13/2010  
Brian Hauck  Neal Katyal, [Redacted]  RE: Health Care Defense  1/8/2010  
Neal Katyal  Brain Hauck, [Redacted]  RE: Health Care Defense  1/8/2010  
Brian Hauck  Neal Katyal  Health Care Defense  1/8/2010
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
72-104  Email and two attachments  Elena Kagan  [Redacted]  Draft brief Golden Gate Restaurant Association City and County San Francisco, Ct. No. 081515  2/28/2010  Nonresponsive (b)(5)  Email pg., First attachment pgs., Secon attachment pgs.  The body the email and the first attached document not contain information responsive plaintiffs FOIA request. addition, the first attachment contains agencys internal analysis proposed agency action that was never taken. The second attachment contains the agencys description the proposed action, including additional analysis that action. Two paragraphs the second attachment (at pages and 2021 the document) are responsive plaintiffs FOIA request because those paragraphs indicate that issues related agencys internal government proposal might affected the then-pending health-care-reform legislation were enacted. The email and its attachments are being withheld under Exemption  

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Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
105  Email chain  Susan Davies  Ronald Klain, Robert Bauer, Daniel Meltzer, Cynthia Hogan, Elena Kagan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  Not agency record (b)(2) (b)(5) (b)(6)  These documents consist email exchange between Kagan, her capacity nominee the United States Supreme Court, and staff members the Executive Office the President. The email exchange concerns drafting and revising proposed answer Kagan might give possible question she might asked, during the Senate confirmation process, about recusal decisions Solicitor General. review the hearing record Ms. Kagans confirmation the U.S. Senate reveals that the question issue this email exchange was never asked answered. Even this document were considered agency record subject the FOIA, the information contained the document exempt from disclosure pursuant Exemption also, the email addresses the staff members the Executive Office the President are exempt from disclosure pursuant Exemptions and  
Robert Klain  Robert Bauer, Daniel Meltzer, Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  DRAFT Answer [Redacted]  5/17/2010 
-11
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
106108^  Email chain  Elena Kagan  Robert Bauer, Ronald Klain, Joshua Earnest, Susan Davies, Daniel Meltzer,  Re: DRAFT Answer [Redacted]  5/18/2010  Not agency record (b)(2) (b)(5) (b)(6)  These documents consist email exchange between Kagan, her capacity nominee the United States Supreme Court, and staff members the Executive Office the  
Cynthia Hogan  President. The email exchange concerns drafting and revising proposed answer Kagan might give possible question she might asked, during the Senate confirmation process, about recusal decisions Solicitor General. review the hearing record Ms. Kagans confirmation the U.S. Senate reveals that the question issue this email exchange was never asked answered. Even this document were considered agency record subject the FOIA, the information contained the document exempt from disclosure pursuant Exemption also, the email addresses the staff members the Executive Office the President are exempt from disclosure pursuant Exemptions and  
Robert Bauer  Ronald Klain, Elena Kagan, Joshua Earnest, Susan Davies, Daniel Meltzer, Cynthia Hogan  RE: DRAFT Answer [Redacted]  5/17/2010  
Ronald Klain  Elena Kagan, Robert Bauer, Joshua Earnest, Susan Davies, Daniel Meltzer, Cynthia Hogan  Re: DRAFT Answer [Redacted]  5/17/2010  
Elena Kagan  Ronald Klain, Robert Bauer, Joshua Earnest, Susan Davies, Daniel Meltzer, Cynthia Hogan  Re: DRAFT Answer [Redacted]  5/17/2010  
Ronald Klain  Robert Bauer,  Re: DRAFT  5/17/2010  
Joshua Earnest,  Answer  
Susan Davies,  [Redacted]  
Elena Kagan,  
Daniel Meltzer,  
Cynthia Hogan  

-12
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
106108^  Robert Bauer  Joshua Earnest, Susan Davies,  Re: DRAFT Answer  5/17/2010  
(cont.)  Ronald Klain, Daniel Meltzer,  [Redacted]  
Elena Kagan, Cynthia Hogan  
Joshua Earnest  Susan Davies, Robert Bauer,  RE: DRAFT Answer  5/17/2010  
Ronald Klain, Elena Kagan, Daniel Meltzer,  [Redacted]  
Cynthia Hogan  
Susan Davies  Robert Bauer, Ronald Klain,  RE: DRAFT Answer  5/17/2010  
Elena Kagan, Daniel Meltzer,  [Redacted]  
Cynthia Hogan, Joshua Earnest  
Robert Bauer  Ronald Klain, Elena Kagan, Daniel Meltzer, Susan Davies,  RE: DRAFT Answer [Redacted]  5/17/2010  
Cynthia Hogan, Joshua Earnest  
Ronald Klain  Elena Kagan, Daniel Meltzer,  RE: DRAFT Answer  5/17/2010  
Robert Bauer, Susan Davies,  [Redacted]  
Cynthia Hogan, Joshua Earnest  

-13
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
106108^  Elena Kagan  Daniel Meltzer, Ronald Klain,  Re: DRAFT Answer  5/17/2010  
(cont.)  Robert Bauer, Susan Davies,  [Redacted]  
Cynthia Hogan, Joshua Earnest  
Daniel Meltzer  Ronald Klain, Robert Bauer,  RE: DRAFT Answer  5/17/2010  
Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  [Redacted]  
Ronald Klain  Robert Bauer, Daniel Meltzer,  DRAFT Answer  5/17/2010  
Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  [Redacted]  

-14
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
109110^  Email chain  Robert Bauer  Susan Davies, Ronald Klain, Elena Kagan, Daniel Meltzer, Cynthia Hogan, Joshua Earnest  re: DRAFT Answer [Redacted]  5/17/2010  Not agency record (b)(2) (b)(5) (b)(6)  These documents consist email exchange between Kagan, her capacity nominee the United States Supreme Court, and staff members the Executive Office the President. The email exchange concerns drafting and revising proposed answer Kagan might give possible question she might asked, during the Senate confirmation process, about recusal decisions Solicitor General. review the hearing record Ms. Kagans confirmation the U.S. Senate reveals that the question issue this email exchange was never asked answered. Even this document were considered agency record subject the FOIA, the information contained the document exempt from disclosure pursuant Exemption also, the email addresses the staff members the Executive Office the President are exempt from disclosure pursuant Exemptions and  
Susan Davies  Robert Bauer, Ronald Klain, Elena Kagan, Daniel Meltzer, Cynthia Hogan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Robert Bauer  Ronald Klain, Elena Kagan, Daniel Meltzer, Susan Davies, Cynthia Hogan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Ronald Klain  Elena Kagan, Daniel Meltzer, Robert Bauer, Susan Davies, Cynthia Hogan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Elena Kagan  Daniel Meltzer,  Re: DRAFT  5/17/2010  
Ronald Klain,  Answer  
Robert Bauer,  [Redacted]  
Susan Davies,  
Cynthia Hogan,  
Joshua Earnest  

-15
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
109110^  Daniel Meltzer  Ronald Klain, Robert Bauer,  RE: DRAFT Answer  5/17/2010  
(cont.)  Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  [Redacted]  
Ronald Klain  Robert Bauer, Daniel Meltzer,  DRAFT Answer  5/17/2010  
Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  [Redacted]  

-16
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
111112^  Email chain  Cynthia Hogan  Joshua Earnest, Susan Davies, Robert Bauer, Ronald Klain, Elena Kagan, Daniel Meltzer  Re: DRAFT Answer [Redacted]  5/17/2010  Not agency record (b)(2) (b)(5) (b)(6)  These documents consist email exchange between Kagan, her capacity nominee the United States Supreme Court, and staff members the Executive Office the President. The email exchange concerns drafting and revising proposed answer Kagan might give possible question she might asked, during the Senate confirmation process, about recusal decisions Solicitor General. review the hearing record Ms. Kagans confirmation the U.S. Senate reveals that the question issue this email exchange was never asked answered. Even this document were considered agency record subject the FOIA, the information contained the document exempt from disclosure pursuant Exemption also, the email addresses the staff members the Executive Office the President are exempt from disclosure pursuant Exemptions and  
Joshua Earnest  Susan Davies, Robert Bauer, Ronald Klain, Elena Kagan, Daniel Meltzer, Cynthia Hogan  RE: DRAFT Answer [Redacted]  5/17/2010  
Susan Davies  Robert Bauer, Ronald Klain, Elena Kagan, Daniel Meltzer, Cynthia Hogan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Robert Bauer  Ronald Klain, Elena Kagan, Daniel Meltzer, Susan Davies, Cynthia Hogan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Ronald Klain  Elena Kagan,  RE: DRAFT  5/17/2010  
Daniel Meltzer,  Answer  
Robert Bauer,  [Redacted]  
Susan Davies,  
Cynthia Hogan,  
Joshua Earnest  

-17
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
111112^ (cont.)  Elena Kagan  Daniel Meltzer, Ronald Klain, Robert Bauer, Susan Davies, Cynthia Hogan, Joshua Earnest  Re: DRAFT Answer [Redacted]  5/17/2010  These documents consist email exchange between Kagan, her capacity nominee the United States Supreme Court, and staff members the Executive Office the President. The email exchange concerns drafting and revising proposed answer Kagan might give possible question she might asked, during the Senate confirmation process, about recusal decisions Solicitor General. review the hearing record Ms. Kagans confirmation the U.S. Senate reveals that the question issue this email exchange was never asked answered. Even this document were considered agency record subject the FOIA, the information contained the document exempt from disclosure pursuant Exemption also, the email addresses the staff members the Executive Office the President are exempt from disclosure pursuant Exemptions and  
Daniel Meltzer  Ronald Klain, Robert Bauer, Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  RE: DRAFT Answer [Redacted]  5/17/2010  
Ronald Klain  Robert Bauer, Daniel Meltzer, Susan Davies, Cynthia Hogan, Elena Kagan, Joshua Earnest  DRAFT Answer [Redacted]  5/17/2010  

-18
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Doc  Document Type  Author/From  Subject/Title  Date  Exemption/ Reason for Withholding  Pages  Description Withheld Information  
113*^  Email  Betsy Henthorne  Jonathan Kravis  recusals  5/14/2010  Nonresponsive Not agency record (b)(5) (b)(6)  This document email between former Solicitor General Kagans confidential assistant and staff member the Executive Office the President. The email, sent Kagans behalf, consists draft version  
response question the Judicial Nomination Questionnaire that Kagan prepared and submitted the U.S. Senate during the confirmation process; comparison the email with the final Judicial Nomination  
Questionnaire that Kagan submitted the U.S. Senate reveals that the version the email non-final. The question issue this email seeks information  
about cases from which Kagan recused herself Solicitor General  
Even this document were considered agency record subject the FOIA, the information contained the  
document exempt from disclosure pursuant Exemption also, the email addresses the staff member  
the Executive Office the President  
exempt from disclosure pursuant Exemptions and  

-19
Case 1:10-cv-02013-ESH Document 10-3 Filed 03/15/11 Page 126 
Identification Key Department Justice Officials 
Office the Solicitor General 
Elena Kagan, then-Solicitor General
 Neal Katyal, Acting Solicitor General, then-Principal Deputy Solicitor General
 Edwin Kneedler, Deputy Solicitor General
 Michael Dreeben, Deputy Solicitor General
 Malcolm Stewart, Deputy Solicitor General
 Betsy Henthorne, then-Confidential Assistant the Solicitor General
 
Office the Attorney General Stuart Delery, Senior Counselor the Attorney General, then-Associate Deputy Office Legal Counsel Attorney General Jonathan Cedarbaum, then-Deputy Assistant Attorney General James Garland, then-Deputy Chief Staff and Counselor the Attorney General Tali Farhadian, then-Counsel the Attorney General Office Legislative Affairs Ronald Weich, Assistant Attorney General Office the Deputy Attorney General Judith Applebaum, Deputy Assistant Attorney General Lisa Monaco, Principal Associate Deputy Attorney General Charlotte Burrows, Associate Deputy Attorney General Office Public Affairs Donald Verrilli, then-Associate Deputy Attorney General Tracy Schmaler, Deputy Director Karyn Temple Claggett, then-Senior Counsel the Deputy Attorney General Chad Golder, then-Counsel the Deputy Attorney General Civil Division Tony West, Assistant Attorney General Office the Associate Attorney General Beth Brinkmann, Deputy Assistant Attorney General, Appellate Section Thomas Perrelli, Associate Attorney General Ian Gershengorn, Deputy Assistant Attorney General, Federal Programs Branch Joseph Guerra, then-Principal Deputy Associate Attorney General Brian Martinez, Chief Staff the Assistant Attorney General Marisa Chun, Deputy Associate Attorney General Sam Hirsch, Deputy Associate Attorney General Antitrust Division Brian Hauck, Senior Counsel the Associate Attorney General Gene Kimmelman, Chief Counsel for Competition Policy/Intergovernmental Relations Mala Adiga, Counsel the Associate Attorney General Robert Potter, Chief, Legal Policy Section Currie Gunn, Office Manager 
-20
EXHIBIT
 
DOJ 2740.1A 

USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
Approval Date: 	December 2008 
Approved By: Lee Lofthus Assistant Attorney Generalfor Administration 
Distribution:	 BUR/H-1; OBD/H-1; SPL-23 
Initiated by: 	Justice Management DivisionOffice General Counsel 	
PURPOSE. This order states the Department's policy theuse departmental computers and computer systems, thelack expectation privacy with respect such use,and authorized monitoring access information ondepartmental computers and computer systems. 	
SCOPE. This policy applies all classified andunclassified computer systems and peripheral devices (suchas Personal Electronic Devices) that are acquired for useby, owned, operated, managed departmentalcomponent. privately-owned computer device that isconnected departmental computer system consideredto departmental computer system while connected.This policy applies all Department components. 	
POLICY. 	Approval for Deviation from Policy. componentshall issue any less restrictive policy with respectto the acceptable and prohibited use Departmentcomputer systems and Department provided Internetresources (e.g., Internet electronic mail, World WideWeb access, Department Internet Web site) withoutwritten approval the Department Chief InformationOfficer. Components may issue further implementingguidance such use consistent with this policy 
Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
without written approval. Components may not deviatefrom the monitoring and access provisions thisorder. 
Use Department Computers and Computer Systems. 

(1) 	
Use departmental computer systems, includingbut not limited Internet e-mail, departmentale-mail, word processing systems, and connectionsto Internet sites, subject the samerestrictions use are other government-furnished resources provided for the use ofemployees. (See C.F.R.  2635.101(b)(9) and2635.704.) 

(2) 	
While departmental computer systems are providedfor official use, some personal use governmentcomputer systems permitted accordance withexisting policy personal use governmentproperty, where there negligible cost thegovernment and interference with officialbusiness. (See C.F.R.  45.4.) 	
Prohibited Use Department Computers and ComputerSystems. 

(1) 	The following activities are prohibited ondepartment computers and computer systems duringworking non-working hours, except whenconducting legitimate departmental business withthe express prior permission the employee'sComponent Head, Deputy Component Head FieldOffice Head: 
(a) 	
Use Internet sites that result additional charge the government. 

(b) 	
Using government office equipment foractivities that are illegal, inappropriate,or offensive fellow employees thepublic. Such activities include: hate speech, material that ridicules others onthe basis race, creed, religion, color,sex, disability, national origin, sexualorientation. 

Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
(c) 	
The creation, download, viewing, storage,copying, transmission sexuallyexplicit sexually oriented materials ormaterials related illegal gambling,illegal weapons, terrorist activities, andany other illegal activities activitiesotherwise prohibited. 

(d) 	
Use that could cause congestion, delay, ordisruption service any governmentsystem equipment, unless for legitimatedepartmental business. For example,electronic greeting cards, video, sound orother large file attachments can degrade theperformance the entire network, andshould not viewed sent Departmentcomputers. Accessing continuous datastreams (such viewing streaming video orlistening streaming audio/radio amedia website) could also degrade theperformance the entire network and aninappropriate use (except when access isprovided the Department otherwiseauthorized). 

(e) 	
The creation, copying, transmission, orretransmission chain letters other unauthorized mass mailings regardless thesubject matter. 

(f) 	
Any use circumvent security controls onDepartment other external systems. 

(g) 	
Knowingly using anonymizer sites (anonymizersites hide the users identity from theInternet site being visited; however, indoing so, they also bypass the blockingmechanism designed protect Departmentsystems from malicious Internet sites). 

(h) 	
Knowingly visiting malicious resources orsites. 

(i) 	
Using peer-to-peer (P2P) file sharing siteson the Internet (e.g., sites dedicated todownloading audio video files), usingIP telephony sites. 

Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
(j) 	
Use for commercial purposes support of"for-profit" activities support ofother outside employment businessactivity (e.g., consulting for pay, sales oradministration business transactions,sale goods services). 

(k) 	
Any otherwise prohibited activity, such assending out solicitations, participating inany lobbying activity, engaging inprohibited political activity. 

(l) 	
Use for posting agency information toexternal newsgroups, bulletin boards orother public forums without authority. This includes any use that could create theperception that the communication was madein ones official capacity FederalGovernment employee, unless appropriateAgency approval has been obtained, usesat odds with the agencies mission orpositions. 

(m) 	
Downloading, exchanging, e-mailing, orotherwise using making available anymaterial (such computer software ormusic) way that infringes upon anycopyright, patent, trademark, trade secretor other proprietary privacy right anyparty. 

(2) 	Downloading and/or installing any program,software executable file departmentcomputers prohibited unless approved inaccordance with component security policy. 	Proper Representation the responsibility ofemployees ensure that they are not giving the falseimpression that they are acting officialcapacity when they are using government officeequipment for nongovernment purposes. there expectation that such personal use could beinterpreted represent agency, then adequatedisclaimer must used. One acceptable disclaimer
 The contents this message are mine personallyand not reflect any position the Government 
Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS agency. The Standards Conduct states an employee shall not use permit the use hisGovernment position title any authorityassociated with his public office manner thatcould reasonably construed imply that his agencyor the Government sanctions endorses his personalactivities CFR  2635.702(b)). Expectation Privacy. Individual employeesshould NOT expect privacy the use governmentcomputers computer systems. The Department mayaccess e-mail messages, files, records, otherdocuments government computer systems whenever ithas legitimate governmental purpose for doing so. 	
Monitoring, Disclosing, Accessing E-mail orDocuments Computer Systems. Use departmentalcomputer systems constitutes consent monitoring anddisclosure information stored transiting thedepartmental computer system provided below. The Department routinely conducts monitoring andintercepts communications for security purposes and todetect improper use. Such monitoring and interceptionincludes the use software tools that examine the content Internet communications and email, andblock access known suspected malicious Internetsites. The Department may block otherwise preventany improper use activity prohibited section

3.c. above. 
(1) 	
Authorized Access. Monitoring, disclosing, andaccessing another employees e-mail messages,Internet activities, documents, files, otherinformation stored transiting thedepartmental computer system may only done forauthorized purposes. Accessing shared storage(i.e., server disk drive intended for sharedor public access) does not constitute accessinganother employee's computer system. 

(2) 	
Authorized Purposes for Monitoring, Disclosing,or Accessing: 

(a) 	For system administration and systemsecurity. 
Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
(b) 	
For investigatory purposes by, asauthorized by, the Office ProfessionalResponsibility, the Office the InspectorGeneral, the Federal Bureau ofInvestigation, the Criminal Division. 

(c) response court order, grand jurysubpoena, search warrant. 

(d) order prevent death serious injuryto any person. 

(3) 	Authorizing Officials. Access employee'scomputer system for any other reason, such forsuspected misconduct not connected with anofficial investigation one the officeslisted above, must authorized by: 
(a) 	
The head the Bureau where the employeeworks, for Bureau personnel; 

(b) 	
The head the Executive Office for U.S. Attorneys, for U.S. Attorneys personnel; 

(c) 	
The head the Executive Office for U.S. Trustees (EOUST), for EOUST personnel; 

(d) 	
The head the National Drug IntelligenceCenter (NDIC), for NDIC personnel; 

(e) 	
The Assistant Attorney General forAdministration for all other components. 

This authority may not delegated below thelevel principal deputy. 
(4) 	
Notification Monitoring and Disclosure. All components are required provide adequatenotice their employees that their use thedepartmental computer system constitutes consentto monitoring and disclosure. The Standard Warning Banner promulgated the DepartmentsChief Information Officer provides such adequatenotice. 

(5) 	
Employee Activities. Nothing this policycreates any enforceable rights; however, 

Order DOJ 2740.1A    Page USE AND MONITORING DOJ COMPUTERS AND COMPUTER SYSTEMS 
unauthorized use monitoring improper accessto employee's computer system may result indisciplinary action criminal prosecution.Employees are prohibited from accessing the email, electronic files documents, otherwisemonitoring the online activities anotheremployee except accordance with this policy. 	Sanctions for Misuse. Unauthorized improper use ofDepartment office equipment could result loss ofuse limitations use equipment, disciplinaryor adverse actions, and/or criminal penalties. 

EXHIBIT
 
EXHIBIT



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