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State Dept Inspector General Report

State Dept Inspector General Report

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SENSITIVE BUT UNCLASSIFIED
January 2016
OFFICE EVALUATIONS AND SPECIAL PROJECTS
Evaluation the Department State FOIA Processes for
Requests Involving the Office the Secretary
View Report
What OIG Reviewed part ongoing efforts respond
requests from the current Secretary State
and several Members Congress, the
Office Inspector General (OIG) evaluated
efforts undertaken the Department
State (Department) ensure that records
are properly produced response
Freedom Information Act (FOIA) requests
involving past and current Secretaries
State. This report addresses (1) the
Department compliance with FOIA
statutory and regulatory requirements and
(2) the effectiveness the processes used the Office the Secretary Executive
Secretariat (S/ES) respond FOIA
requests.
What OIG Recommends
OIG recommends that the Bureau
Administration identify personnel needed
improve the timeliness FOIA responses
and quickly acquire those resources.
OIG recommends further that the
Department develop quality assurance
plan identify and address vulnerabilities the FOIA process.
OIG also makes two recommendations
S/ES ensure that its FOIA searches are
complete and accurate.
Based the Department responses
draft this report, OIG considers all
these recommendations resolved,
pending further action.
What OIG Found
S/ES responsible for coordinating searches for FOIA requests
for records held the Office the Secretary. When FOIA
request that nature received the Department, the Office Information Programs and Services (IPS) within the Bureau
Administration notifies S/ES. S/ES reports its findings IPS,
which then communicates with the FOIA requester.
OIG past and current work demonstrates that Department
leadership has not played meaningful role overseeing
reviewing the quality FOIA responses. The searches performed S/ES not consistently meet statutory and regulatory
requirements for completeness and rarely meet requirements for
timeliness. S/ES currently searches Department email accounts
only FOIA request mentions emails asks for all records, S/ES requested during the course litigation.
However, FOIA and Department guidance require searching email
accounts when relevant records are likely maintained these
accounts. addition, although FOIA requires agencies respond requests within working days, some requests involving the
Office the Secretary have taken more than 500 days process.
These delays are due, part, the Department insufficient
provision personnel IPS handle its caseload.
These problems are compounded the fact that S/ES FOIA
responses are sometimes inaccurate. Officials IPS and attorneys
for the Department identified instances which S/ES reported that
records did not exist, even though was later revealed that such
records did exist. Procedural weaknesses S/ES FOIA processes
appear contributing these deficiencies. For example, S/ES
management not monitoring search results for accuracy, and IPS
has limited ability conduct oversight. S/ES also lacks written
policies and procedures for responding FOIA requests. Finally,
staff S/ES and other components the Office the Secretary
have not taken training offered IPS better understand their
FOIA responsibilities. September 2015, the Department appointed Transparency
Coordinator improve the Department FOIA process, among
other things.
SENSITIVE BUT UNCLASSIFIED
SENSITIVE BUT UNCLASSIFIED
ESP-16-01
Office Evaluations and Special Projects
January 2016
Evaluation the Department State
FOIA Processes for Requests Involving
the Office the Secretary
IMPORTANT NOTICE: This report intended solely for the official use the Department State the
Broadcasting Board Governors, any agency organization receiving copy directly from the Office Inspector General. secondary distribution may made, whole part, outside the
Department State the Broadcasting Board Governors, them other agencies
organizations, without prior authorization the Inspector General. Public availability the document
will determined the Inspector General under the U.S. Code, U.S.C. 552. Improper disclosure this
report may result criminal, civil, administrative penalties.
SENSITIVE BUT UNCLASSIFIED
SENSITIVE BUT UNCLASSIFIED
CONTENTS
OBJECTIVES AND METHODOLOGY ..........................................................................................................................
BACKGROUND .................................................................................................................................................................
THE DEPARTMENT DOES NOT CONSISTENTLY MEET FOIA LEGAL AND REGULATORY
REQUIREMENTS ...............................................................................................................................................................
Statutory Deadlines for Processing Requests Are Not Met.....................................................................
S/ES Does Not Routinely Follow Requirements Search Email..........................................................
PROCEDURAL WEAKNESSES CONTRIBUTE DEFICIENT FOIA SEARCHES AND RESPONSES .....10
Current S/ES FOIA Processes Are Inadequate ................................................................................................10
S/ES FOIA Searches and Responses Are Sometimes Inaccurate and Incomplete.........................13
RECOMMENDATIONS .................................................................................................................................................16
APPENDIX MANAGEMENT RESPONSES..........................................................................................................18
ABBREVIATIONS ............................................................................................................................................................24
OIG EVALUATIONS AND SPECIAL PROJECTS TEAM ........................................................................................25
SENSITIVE BUT UNCLASSIFIED
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OBJECTIVES AND METHODOLOGY April 2015, the Office Inspector General (OIG) initiated evaluation address concerns
identified during recent audits and inspections and respond requests from the current
Secretary State and several Members Congress involving variety issues, including the
use non-Departmental systems conduct official business, records preservation
requirements, and Freedom Information Act (FOIA) compliance. This report, which one
several documenting OIG findings these areas, addresses efforts undertaken the
Department State (Department) ensure that government records are properly produced
response FOIA requests involving past and current Secretaries State. Specifically, this report
assesses (1) the Department compliance with FOIA statutory and regulatory requirements and
(2) the effectiveness the processes used the Office the Secretary, Executive Secretariat
(S/ES), respond FOIA requests. OIG has already issued findings related one aspect the
FOIA process used review and release 55,000 pages emails that former Secretary State
Hillary Rodham Clinton provided the Department December 2014.3 OIG will report
separately issues associated with the use non-Departmental systems conduct official
business and records preservation requirements. planning this work, OIG drew FOIA, and related regulations and guidance issued the
Department, and Standards for Internal Control the Federal Government. gain
understanding the Department FOIA processes, controls, and policies and procedures, OIG
interviewed the Under Secretary for Management, the Assistant Secretary for the Bureau
OIG has identified the following issues: inconsistencies across the Department identifying and preserving records,
hacking incidents and other issues affecting the security Department electronic communication, delays and other
problems related processing FOIA requests, and concerns about Ambassador use private email conduct
official business. See OIG, Review State Messaging and Archive Retrieval Toolset and Record Email (ISP-I-15-15,
March 2015); OIG, Audit the Department State Information Security Program (AUD-IT-15-17, October 2014);
OIG, Management Alert: OIG Findings Significant and Recurring Weaknesses the Department State
Information System Security Program (AUD-IT-14-04, November 2013); OIG, Inspection the Bureau
Administration, Global Information Services, Office Information Programs and Services (ISP-I-12-54, September
2012); and OIG, Inspection Embassy Nairobi, Kenya (ISP-I-12-38A, August 2012).
For purposes this work, OIG uses the term non-Departmental systems mean hardware and software that
not owned, provided, monitored, certified the Department State.
OIG, Potential Issues Identified the Office the Inspector General the Intelligence Community Concerning the
Department States Process for the Review Former Secretary Clintons Emails under the Freedom Information
Act (ESP-15-04, July 17, 2015). This report made four recommendations strengthen the Department review
records prior release: (1) requesting staff support from intelligence community FOIA offices assist the
identification equities, (2) facilitating review records FOIA officials ensure that the Department
Classified Network appropriate for storage FOIA material, (3) seeking classification expertise from the interagency act final arbiter there question regarding potentially classified material, and (4) incorporating the
Department Justice into the FOIA process ensure the legal sufficiency review the FOIA exemptions and
redactions. response, the Department agreed with recommendations and but did not agree with
recommendations and
Government Accountability Office (GAO), Standards for Internal Control the Federal Government (GAO-14-704G,
September 2014).
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Administration (A), and various officials the Office Global Information Services (A/GIS) and
S/ES. addition, OIG reviewed the Department annual FOIA reports and obtained and
analyzed list all FOIA requests tasked the Office the Secretary from 1996 2015. OIG
also consulted with the National Archives and Records Administration Office Government
Information Services and reviewed the FOIA procedures other Federal agencies. OIG
conducted this work accordance with quality standards for evaluations set forth the
Council the Inspectors General Integrity and Efficiency.
BACKGROUND
Enacted 1966, FOIA provides that any person has right, enforceable court, obtain
access Federal agency records, except the extent that such records (or portions them)
are protected from public disclosure one the Act exemptions exclusions. The Act
defines record broadly and covers any information that would agency record subject
the requirements [FOIA] when maintained agency any format, including electronic
format.
Upon receipt request for records, the agency required determine whether comply
and notify the requester its determination and the justification for within working
days. The notification adverse determination could denial the request whole part based the statutory exemptions determination that such records exist. The
exemptions include, for example, classified information, privileged communications, and law
enforcement information. adverse determination, the agency must notify the requester that she has right
appeal the determination the head the agency. administrative appeal shall decided
within working days. the appeal not favorable, the requester may then file complaint
Federal district court enjoin the agency from withholding agency records and order the
FOIA, U.S.C. 552. exemption applies, the agency must notify the requester that record exists but exempt
from disclosure. exclusion applies, the agency may notify the requester that responsive records subject
FOIA exist. Exclusions relate the existence ongoing criminal investigation, the names informants, and
classified foreign intelligence counterintelligence international terrorism records. U.S.C. 552(f)(2)(A). U.S.C. 552(a)(6)(A)(i). unusual circumstances, the time limit for responding request appeal may
extended ten working days. U.S.C. 552(a)(6)(B). U.S.C. 552(b).The nine exemptions are (1) information that classified protect national security, (2)
information related solely the internal personnel rules and practices agency, (3) information that prohibited
from disclosure another Federal law, (4) trade secrets commercial financial information that confidential
privileged, (5) privileged communications within between agencies, (6) information that disclosed would
unwarrantedly invade another individuals personal privacy, (7) certain information compiled for law enforcement
purposes, (8) information that concerns the supervision financial institutions, and (9) geological information
wells. U.S.C. 552(a)(6)(A). This includes determination that responsive records exist.
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production any agency records the requester believes the agency improperly withheld.
addition, requester who receives response within days has right file complaint
district court immediately. the Department, the Foreign Affairs Manual (FAM) designates the Office Information
Programs and Services (IPS) responsible for the Department compliance with FOIA. IPS
part the Office Global Information Services, subcomponent the Bureau
Administration. The FAM also designates the Assistant Secretary for Administration the Chief
FOIA Officer, responsible for Department-wide FOIA compliance. The Assistant Secretary for
Administration reports the Under Secretary for Management.
IPS administers the Department Information Access Program, which includes administering all
requests for FOIA records. IPS coordinates, tracks, and reports responses all FOIA requests
for Department records including administrative appeals made connection with such
requests and supposed ensure that responses are timely, accurate, and complete. The
Department FOIA regulations specify that FOIA requests sent IPS.16 The request must
reasonably describe the records sought, should specific, and should include all pertinent
details about the request, including the subject, timeframe, any individuals involved, and reasons
why the Department believed have records the subject the request.
Once FOIA request received, IPS logs into the case-tracking system the Freedom
Information Document Management System (FREEDOMS) and acknowledges the request. IPS
then determines which Department bureaus, offices, overseas posts would possess the
requested records and sends search/review request transmittal (Form DS-1748) each office
FOIA coordinator. The form requires each office provide information the files searched and
their location, the search terms used, and the time period searched, among other information. 2010, the Department issued guidance offices that describes general terms how search take place.
Offices must undertake searches that are reasonably calculated uncover all
relevant materials. Unless otherwise noted given request, offices should
conduct search for records any form, including paper records, email U.S.C. 552(a)(4)(B). alternative litigation, requester may request mediation with the agency, which
conducted the Office Government Information Services the National Archives and Records Administration.
U.S.C. 552(h)(3). U.S.C. 552 (a)(6)(C)(i). FAM 214.2. FAM 211.2(ee). Executive Order 13392 requires the designation Chief FOIA Officer. FAM 211.2(a)
U.S. Department State, FOIA Guidance For State Department Employees (2010), C.F.R. 171.5(a). C.F.R. 171.5(c).
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(including email personal folders and attachments email), and other
electronic records servers, workstations, Department databases.
Offices not, however, need search where there reasonable possibility finding responsive records.
Once the search office returns responsive records IPS, IPS determines their relevance the
request and whether any part them may released the requester whether they are
subject one FOIA exemptions. IPS then prepares the formal response the requester
and includes any responsive records that are subject release. requester files
administrative appeal adverse determination, adjudicated the Appeals Review
Panel, consisting retired Foreign Service Officers.
FOIA Guidance For State Department Employees,
Certain offices, including the Bureau Diplomatic Security and the Office Medical Services, are referred
decentralized offices and review their own documents for exemptions. However, these offices must still forward
copy their response the request IPS. C.F.R. 171.52.
ESP-16-01
SENSITIVE BUT UNCLASSIFIED
SENSITIVE BUT UNCLASSIFIED shown Figure when FOIA
request involves documents produced Secretary State other officials
the Office the Secretary (S), the two
Deputy Secretaries State (D), the Under
Secretary for Political Affairs (P), the
Counselor the Department (C), IPS tasks
S/ES with performing search for relevant
documents. S/ES responsible for the
coordination material presented the
Secretary, Deputy Secretary, and Under
Secretaries; the implementation
decisions made these officials; and the
Departments relations with the White
House, National Security Council, and
other Cabinet agencies.21 S/ES employs
one FOIA Analyst, who reports the GS14 Deputy Director Correspondence,
Records, Staffing (Deputy Director).
The Deputy Director serves the S/ES
FOIA coordinator and reports the
Director Secretariat Staff.
According information provided
S/ES, the FOIA Analyst searches for
relevant documents several databases tasks the relevant office (S,
with performing the search. After the
search completed, the Deputy Director
conducts review the FOIA Analyst
search and the records identified. Finally,
all identified records are sent IPS for
processing, along with signed form DS1748 identifying the databases searched
and the time expended conducting the
search. the request litigation
legal guidance sought regarding the
search, attorney from the Office the
Legal Adviser (L) may review the proposed
response before released the
requester. FAM 022.2. second S/ES employee occasionally assists with FOIA searches addition his regular duties.
ESP-16-01
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SENSITIVE BUT UNCLASSIFIED September 2015, Secretary State John Kerry named former career Senior Foreign Service
Officer the Department Transparency Coordinator. The Transparency Coordinator will lead
the Department efforts meet the President Managing Government Records directive,
respond OIG recommendations, and work with other agencies and the private sector
explore best practices and new technologies. Secretary Kerry also tasked the Transparency
Coordinator with improving the efficiency the Department systems for responding FOIA
and congressional requests.
THE DEPARTMENT DOES NOT CONSISTENTLY MEET FOIA LEGAL
AND REGULATORY REQUIREMENTS
Statutory Deadlines for Processing Requests Are Not Met
FOIA requires agencies respond FOIA requests within working days. However, the
Department rarely meets this statutory deadline, even for simple requests. Although few
agencies are able meet the 20-day deadline for complex requests, overall compliance
much greater across the Federal Government than the Department. 2014, the average
processing time for simple requests across the Federal Government was 20.5 days, and the
Government-wide average for complex requests was slightly less than 119 days. contrast,
the Department took four and one-half times long average days process simple
requests and almost 535 days process complex requests.
The Department has been particularly late meeting FOIA timelines for requests involving the
Office the Secretary. Table which based IPS data provided OIG, shows the
processing time for FOIA requests that were tasked S/ES and involved the current and past
The Department Justice, which required FOIA develop reporting and performance guidelines, defines
complex request one that involves high volume material requires additional steps process, such the
need search for records multiple locations. example simple request single individual visa record.
example complex request one for all records relating the attacks U.S. diplomatic facilities Benghazi,
Libya, which covers multiple bureaus and offices the Department. See U.S. Department Justice, Guide the
Freedom Information Act (2009).
U.S. Department Justice, Summary Annual FOIA Reports For Fiscal Year 2014, pp. 14.
U.S. Department State, Freedom Information Act Annual Report, Fiscal Year 2014, 28. its 2015 analysis
the performance the Federal agencies that consistently receive the most FOIA requests, the Center for Effective
Government rated the Department the lowest scoring agency far. Its analysis demonstrated that the Department
processed only percent the FOIA requests received 2013. Center for Effective Government, Making the
Grade: Access Information Scorecard 2015 (March 2015), The Department Chief FOIA Officer attributed these
delays (1) large increase requests and (2) increase complex requests. The Department requests have
increased recent years; however, this increase requests exists across the Federal Government and not unique
the Department.
ESP-16-01
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four Secretaries State. Only the 417 FOIA requests were completed within the
statutory timeframe. Fifty-five the requests took more than 500 days process. The majority the requests, 243 417, are still pending; several these pending requests were received
years ago. For example, the pending requests relating former Secretary State Colin
Powell are least years old.
Table Processing Time for FOIA Requests Related Recent Secretaries State
Secretary
Albright
Powell
Rice
Clinton
Kerry
Total
Requests Completed Within Listed Times 100
101 500
500+
Days
Days
Days
Days
Still Pending
Total Number
FOIA Requests
177
240
243
417
Source: OIG analysis IPS data, June 2015. 2012, OIG reported that one the key reasons for the timeliness problem was that
relatively small number IPS staff were processing the heavy volume Department-wide
requests. Since then, shown Figure FOIA requests have increased, yet the Department
has allocated fewer employees handle them. According IPS, some these employees have
been assigned hundreds requests each and face severe challenges properly managing their
caseloads.
Figure IPS Staff Devoted Processing Department-wide FOIA Requests
Source: OIG Analysis IPS data.
S/ES told OIG that its statistics differ from IPS data, but agreed work with IPS reconcile the inconsistencies. The
FOIA process has several steps, and IPS often tasks multiple offices with responding requests. Thus, the delays
noted this chart could have occurred multiple steps the process and are not necessarily attributable S/ES
search delays.
OIG, Inspection the Bureau Administration, Global Information Services, Office Information Programs and
Services (ISP-I-12-54, September 2012). GAO also stressed the importance redirecting acquiring resources
clear backlogs 2012 report FOIA compliance across the Government. See GAO, Freedom Information Act:
Additional Actions Can Strengthen Agency Efforts Improve Management (GAO-12-828, July 2012).
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Furthermore, approximately one-third IPS staff have been assigned work one FOIA case litigation, Leopold Department State, which the court ordered rolling production
the approximately 55,000 pages former Secretary Clinton emails that she provided the
Department December 2014, while other FOIA work understaffed. each the past years, IPS has attempted address this issue requesting additional
personnel meet the rising caseload, including its most recent request the Bureau
Administration for additional staff, which estimated would result 10-percent reduction the FOIA backlog. However, the Department has not provided any additional permanent
personnel. late September 2015, the Under Secretary for Management decided detail staff already
within the Department IPS. However, little progress has been made date resolve the
personnel shortage. September 2015, the Department solicited expressions interest
from current and retired Department employees month detail IPS. the
beginning November, temporary employees had started work.
S/ES Does Not Routinely Follow Requirements Search Email general rule, agency must undertake FOIA search that reasonably calculated
uncover all relevant documents. Since 1997, FOIA has specified that agencies must make
reasonable effort search for requested documents electronic form format, except when
such efforts would significantly interfere with the operation agency information
system. 2010, the Department issued more explicit requirements for FOIA compliance:
Unless otherwise noted given request, offices should conduct search for
records any form, including paper records, email (including email personal
folders and attachments email), and other electronic records servers,
workstations, Department databases. addition searching paper records, S/ES typically searches for relevant documents several
electronic databases, including classified files, the Department cable and telegram systems, the
Secretariat Tracking and Retrieval System (STARS), and EVEREST (which replaced STARS). None
The Department anticipates completing the court-ordered production January 2016.
Weisberg U.S. Dep Justice, 705 F.2d 1344, 1351 (D.C.Cir. 1983). U.S.C. 552(a)(3)(C)).
FOIA Guidance For State Department Employees,
According information provided S/ES, EVEREST web-based application that provides the Secretary
State and other senior Department principals the ability receive foreign policy memoranda and correspondence
from Department bureaus and offices electronically, well task and track the paperless submission most
memoranda. Correspondence and memoranda can include internal and external letters, action memos, information
memos, briefing checklists, and telephone talking points, well documents received from other agencies.
Incoming documents are uploaded (in their native format) originating offices into EVEREST, submitted the
Executive Secretary for review, and forwarded electronically the relevant Department principal. EVEREST replaced
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SENSITIVE BUT UNCLASSIFIED these databases are intended archive email files. STARS and EVEREST are systems used
route foreign policy memoranda and other documents the Office the Secretary. S/ES rarely
searched electronic email accounts prior 2011 and still does not consistently search these
accounts, even when relevant records are likely uncovered through such search. For
example, S/ES has not searched email accounts for requests seeking all correspondence
between the Secretary State and another party. The FOIA Analyst described the decision
search email accounts discretionary one that only exercised periodically.
According the Deputy Director explanation current practices, S/ES initiates search
email accounts only FOIA request mentions emails explicitly refers all records. S/ES
will also search email requested attorney during the course litigation
arising over FOIA issues. FOIA request specifically asks for emails current employee, the
FOIA Analyst tasks with searching for the records but does not review the search
methodology approve the results. appears that current and employees search
through their own email accounts for responsive records. the FOIA request specifically asks
for emails former employee, the FOIA Analyst requests the applicable stored electronic file
from the S/ES Office Information Resources Management (S/ES-IRM), the office that handles
information technology for the Office the Secretary. S/ES-IRM reported OIG that has
maintained files numbering the thousands for selected senior officials dating back least
far Secretary Powell tenure, though OIG has determined that many these are not easily
accessible. Moreover, the Deputy Director noted, searching these files difficult because
searches are limited those that can undertaken using Microsoft Outlook.
FOIA neither authorizes nor requires agencies search for Federal records personal email
accounts maintained private servers through commercial providers (for example, Gmail,
Yahoo, and Hotmail). Furthermore, the FOIA Analyst has way independently locate
Federal records from such accounts unless employees take steps preserve official emails
STARS January 2015, and serves permanent, searchable record for the Secretary State and other senior
Department principals memoranda. STARS legacy system that was designed manage the flow foreign policy
memoranda and correspondence both and from the Secretary State and other senior Department principals.
Incoming and outgoing documents were scanned into STARS, manually indexed (through use brief abstract
summarizing the substance the document and identifying document-specific key words), and stored document
images. Searches are limited retrieval material based index terms attached the document; the document
images themselves cannot searched using text-based search methods. New entries into STARS ended January
2015, but continues used locate and retrieve documents.
OIG did not evaluate the practices used and
S/ES-IRM stores the files Personal Storage Table (.pst) files, format used store copies email messages,
calendar events, and other items within Microsoft software.
S/ES-IRM does not maintain index inventory these files. 2015, the Department began permanently retaining the emails 102 senior officials.
S/ES has begun testing software intended enhance its ability search and retrieve email records.
Records subject FOIA are those that are (1) either created obtained agency and (2) under agency control the time the FOIA request. U.S. Dept. Justice Tax Analysts, 492 U.S. 136 (1989). See also Competitive Enter.
Inst. Office Sci. and Tech. Policy, No. 14-765, 2015 967549 (D.D.C. March 2015).
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Department recordkeeping systems. OIG will report separately preservation requirements
applicable past and current Secretaries State and the Department efforts recover
Federal records from personal accounts. However, under current law and Department policy,
employees who use personal email conduct official business are required forward copy
email from personal account their respective Department accounts within days. The
Deputy Director, who has handled FOIA responsibilities for S/ES since 2006, could not recall any
instances emails from personal accounts being provided him response search
tasked S/ES component.
PROCEDURAL WEAKNESSES CONTRIBUTE DEFICIENT FOIA
SEARCHES AND RESPONSES
Current S/ES FOIA Processes Are Inadequate
Although specific details processes for handling FOIA requests vary among agencies, the
major steps processing request are similar across the Federal Government. Recent
assessments the Department processes revealed poor practices. 2012, OIG inspection
A/GIS found, among other deficiencies, that FOIA requests are prone delay and that IPS
lacked sound process develop its information systems. 2015 report the Center for
Effective Government found that, among agencies that receive large volume public
records requests, the Department ranked last, part because increased processing times and
outdated regulations. According the report, the Department was the only agency whose
rules not require staff notify requesters when processing delayed, even though this
mandated law. Furthermore, little attention has been paid the accuracy and completeness responses FOIA requests. The Department has not sent out notice memorandum
reminding employees their FOIA responsibilities since March 2009, when former Secretary
Clinton sent message commemorating Freedom Information Day.
Although OIG focused procedural weaknesses the Office the Secretary for this
evaluation, the issues OIG identified have broader implications. Standards for Internal Control
the Federal Government stresses that the tone the top management philosophy and
operating style fundamental effective internal control system. OIG past and current U.S.C. 2911; Department State, Message from Under Secretary for Management Patrick Kennedy
regarding State Department Records Responsibilities and Policy, Announcement No. 2014_10_115, October 17, 2014. November 2014, the Department sent request former Secretaries State for any Federal records that were
housed personal email. March 2015, the Department sent similar requests several staff members who worked
for former Secretary Clinton. The Department has and continues produce some the records received from these
requests response FOIA requests.
OIG, Inspection the Bureau Administration, Global Information Services, Office Information Programs and
Services (ISP-I-12-54, September 2012).
Center for Effective Government, Making the Grade: Access Information Scorecard 2015 (March 2015).
GAO-14-704G, 1.02 1.05.
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work demonstrates that Department leadership has not played meaningful role overseeing reviewing the quality FOIA responses. September 2015, Secretary Kerry announced
the appointment new Transparency Coordinator, charged with improving document
preservation and transparency systems. This positive step, but the following areas,
addition the lack compliance with legal and regulatory requirements, need immediate
attention:
Lack Written Policies and Procedures: Although other Department components, such the
Bureaus Diplomatic Security and International Narcotics and Law Enforcement Affairs, have
their own written FOIA guidance standard operating procedures, S/ES does not. S/ES does
use guides how search its own databases, EVEREST and STARS, but these are not FOIA
specific and criteria for conducting database searches have been developed. The FOIA
Analyst for S/ES reported learning how perform FOIA search from on-the-job training.
Standards for Internal Control the Federal Government emphasizes the importance
documenting policies and procedures provide reasonable assurance that activities comply
with applicable laws and regulations. Written policies and procedures are also important for
continuity because they increase the likelihood that, when organizational changes occur,
institutional knowledge shared with new staff. Other agencies have recommended written
policies and procedures best practice. For example, the Office Inspector General for the
Environmental Protection Agency recommends that all regional and program offices responsible
for FOIA responses adopt written standard operating procedures ensure quality control.47 The
Office Inspector General for the Department Energy has made similar recommendation,
noting, without formalized policy and procedures, could difficult for individual
unfamiliar with the process take active role filling FOIA requests, possibly leading
delays inefficiencies responding requests.
Inconsistent S/ES Monitoring Efforts: Standards for Internal Control the Federal Government
also emphasizes the importance ongoing monitoring that built into entity operations.
Other agencies monitoring activities vary widely. some agencies, senior attorneys career
members the Senior Executive Service are responsible for approving FOIA responses;
others, administrative staff handle the entire FOIA search and review process. Nonetheless,
standards emphasize that monitoring should include regular management and supervisory
U.S. Department State Press Statement, Transparency Coordinator (Sept. 2015), available
http://www.state.gov/secretary/remarks/2015/09/246691.htm.
GAO-14-704G.
See, e.g., GAO, Social Security Disability: Management Controls Needed Strengthen Demonstration Projects
(GAO-08-1053, September 2008).
EPA, Office Inspector General, EPA Has Improved Its Response Freedom Information Act Requests But
Further Improvement Needed (09-P-0127, March 2009).
DOE, Office Inspector General, Departments Freedom Information Act Request Process (OAS-SR-10-03, Sept.
2010).
See, e.g., Nuclear Regulatory Commission, Office Inspector General, Evaluation Involvement Political
Appointees NRC FOIA Process (OIG-15-A-18, August 2015) and Social Security Administration, Office the
Inspector General, Freedom Information Act Response Process (A-03-15-50107, August 2015).
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activities, comparisons, reconciliations, and other routine actions. Such actions may include
assessing employee performance with FOIA compliance, conducting spot checks, and
establishing and reviewing metrics. Performance standards within S/ES for handling FOIA
matters are incomplete. 2012, OIG recommended that the Department place responsibility
all stages the process and update performance standards, position descriptions, and work
commitments reflect FOIA responsibilities. While the Deputy Director performance
standards have consistently contained multiple references that individual responsibilities
FOIA coordinator, the performance standards for the Deputy Director former supervisors
the Director Secretariat Staff position have not mentioned FOIA all.
Other oversight activities have also been inconsistent. The Deputy Director reviews the FOIA
Analyst search and the records identified. However, the past two Directors Secretariat Staff
reported minimal involvement the FOIA process, other than providing occasional briefings
supervisors high-profile sensitive requests. The past two Directors did not review actual
FOIA searches and responses, even spot-check basis, for quality, timeliness, thoroughness, consistency. They also did not gather review any metrics other tracking information
S/ES FOIA activities. The current Director, who has been the position since July 2015, told OIG
that, while she periodically reviews FOIA responses, depending the scope and nature the
FOIA request, she does not carry out any spot checks for accuracy. The current Director also
reviews status reports that contain basic information the date the request and the offices
tasked with conducting searches. one S/ES reviews the methodology FOIA searches
tasked the other components the Office the Secretary (S, and C).
Limited IPS Review Capability: The FAM designates IPS responsible for the Department
compliance with FOIA, and Department guidance specifically requires IPS ensure that
responses are timely, accurate, and complete. However, IPS almost completely dependent
FOIA coordinators individual bureaus and offices ensure that search results meet FOIA
requirements. IPS does not have the ability independent spot checks part because
does not have access the unique databases used conduct the searches, such the
EVEREST system used the Office the Secretary. According IPS, the quality responses requests for FOIA searches varies across the Department. For example, IPS reported that the
form documenting the search result (Form DS-1748) the FOIA coordinators submit sometimes
missing key information, such the files searched and the search terms used. this information missing IPS identifies another inconsistency, may ask for search redone. IPS
reported that its reviewers have times spent weeks working with FOIA coordinators obtain
complete responses. some cases, IPS will contact the FOIA coordinator supervisor
executive-level staff within the office resolve issue. IPS engagement with S/ES has been
GAO-14-704G, 16.04, 16.05.
The Department agreed with these recommendations but has yet take action.
The performance standards for the current Director Secretariat Staff were not yet available for review the close OIG work. FAM 214.2.
U.S. Department State, FOIA Guidance For State Department Employees (2010).
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limited, with its only contact typically being the Deputy Director. IPS also reports that has
contacted attorneys for assistance when has had difficulty obtaining complete responses
from S/ES. one case regarding request for emails, correspondence, memos, internal notes,
and other pertinent documents and records relating former staff member, IPS tasked S/ES
with search November 2013, but S/ES did not complete the search until December 2014
after the involvement One attorney characterized routine S/ES searches frequently
deficient, except instances when FOIA litigation has commenced.
Insufficient Training: During OIG 2012 inspection A/GIS, IPS reported OIG that most
Department employees are poorly informed about FOIA principles and procedures, well
about the importance providing information the public. IPS has since provided two
Department-wide annual training courses FOIA, recordkeeping, and classification issues.
Records maintained IPS show that more than two S/ES employees have attended
trainings, open houses, workshops offered IPS, and one from has
attended. addition the annual training sessions, IPS has trained specific offices FOIA
their request. Twelve bureaus, offices, embassies have requested and completed this training
since 2014, but S/ES not among them.
S/ES FOIA Searches and Responses Are Sometimes Inaccurate and
Incomplete
These procedural weaknesses, coupled with the lack oversight leadership and failure
routinely search emails, appear contribute inaccurate and incomplete responses. attorneys and officials IPS recalled several instances when S/ES searches have yielded
inaccurate incomplete results, though they were unable determine the magnitude this
problem. The attorneys also noted that FOIA requesters have been able produce evidence
the existence records responsive FOIA request despite the attestation S/ES that
responsive records existed.
S/ES has not taken any corrective actions ensure the accuracy and completeness FOIA
searches. Standards for Internal Control the Federal Government notes that management
should remediate identified deficiencies controls and determine appropriate corrective
actions timely basis. Implementing such corrective actions could protect the Department
from sanctions. For example, litigated cases, incomplete searches S/ES can expose the
Department financial liability, including attorney fees and other litigation costs. The
Department and its leadership could also subject contempt citations they were found
According S/ES, the FOIA Analyst also attended workshops the Department Justice.
Department attorneys noted that these instances not necessarily indicate that the search for records was
inadequate. Not all documents created the Department are Federal records. also possible that document
existed one time but was subsequently destroyed either compliance with the records disposition schedules
because poor recordkeeping practices.
GAO-14-704G, 17.01, 17.05. U.S.C. 552(a)(4)(E).
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have violated rules requiring candor the court. Although attorneys are not aware
instance where such sanctions were imposed, not uncommon for courts order the
Department conduct additional searches provide additional information explaining the
adequacy the searches conducted.
OIG has been unable determine the extent these inaccuracies, but recent examples
incomplete searches and responses FOIA queries involving the Office the Secretary include
the following: March 2010, the Associated Press (AP) filed FOIA request for copies all former
Secretary Clintons public and private calendars and schedules. IPS tasked S/ES with
searching for responsive records. November 2010, S/ES provided IPS with records that
were non-responsive. IPS then contacted the Office the Secretary directly and also
contacted for guidance. IPS has record receiving responses and the FOIA request
sat dormant for several years. August 2013, resubmitted its FOIA request and
updated include request for all the calendars from Secretary Clinton tenure.
June 2014, December 2014, and again July 2015, S/ES provided IPS with information
regarding the location these records, which had been retired. March 2015, after
failing receive responses multiple FOIA requests, filed suit against the
Department. July 2015 court filing, the Department disclosed that had finally
conducted search and located least 4,440 paper and electronic records related
Secretary Clinton calendars and schedules, which were created various personnel
the Office the Secretary. December 2012, the nonprofit organization Citizens for Responsibility and Ethics
Washington (CREW) sent FOIA request the Department seeking records sufficient show the number email accounts of, associated with, Secretary Hillary Rodham
Clinton, and the extent which those email accounts are identifiable those
associated with Secretary Clinton. May 10, 2013, IPS replied CREW, stating that records responsive your request were located. the time the request was
See, e.g., Judicial Watch Internal Revenue Service, Civil Action No. 13-1559 (D.D.C.), where contempt court
citations have been threatened against the IRS FOIA lawsuit.
See e.g., Tarzia Clinton, Civil Action No. 1:10-cv-05654-FM (S.D.N.Y. January 30, 2012); Beltranena Clinton, Civil
Action No. 1:09-cv-01457-BJR (D.D.C. March 17, 2011).
The Associated Press U.S Dept. State, Civil Action No. 1:15-cv-00345-RJL (D.D.C.).
Later the letter part its request waive processing fees, CREW stated its belief that the records was
requesting were likely contribute greater public awareness the extent which Secretary Clinton, like the
administrator the Environmental Protection Agency (EPA), use[s] email accounts not readily identifiable her
accounts. CREW also noted: [r]ecently was reported that [EPA] Administrator Jackson established alias email
accounts conduct official government business, including account under the name Richard Windson which
not publicly attributable her. Through this FOIA, CREW seeks learn how widespread this practice is, and
evaluate the extent which has led under-inclusive responses FOIA, discovery, and congressional requests,
and failure preserve records way that complies with the Federal Records Act.
The response also noted:
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received, dozens senior officials throughout the Department, including members
Secretary Clinton immediate staff, exchanged emails with the Secretary using the
personal accounts she used conduct official business. OIG found evidence that the
Secretary then-Chief Staff was informed the request the time was received
and subsequently tasked staff follow up. However, OIG found evidence indicate
that any these senior officials reviewed the search results approved the response
CREW. OIG also found evidence that the S/ES, and IPS staff involved responding requests for information, searching for records, drafting the response had
knowledge the Secretary email usage. Furthermore, does not appear that S/ES
searched any email records, even though the request clearly encompassed emails. May 2013, the nonprofit organization Judicial Watch filed FOIA request for records
related the authorization former adviser Secretary Clinton undertake
employment outside the Department. IPS tasked S/ES with performing the search, which
returned documents. August 2013, filed FOIA request seeking the same
information, but S/ES only returned five documents for nearly identical request. May 2014, Judicial Watch filed FOIA request seeking records related talking points
given Ambassador the United Nations Susan Rice concerning the September 11,
2012, attack the U.S. diplomatic facilities Benghazi, Libya. July 2014, Judicial
Watch filed suit district court because the Department had not responded the
request. September 2014, IPS tasked S/ES with conducting the search. S/ES initially
identified five documents but only returned four documents IPS because did not
view the fifth document, email, responsive. IPS provided the four documents
Judicial Watch November 2014. June 2015, pursuant earlier request, several
former officials provided the Department with copies records that were their
possession. One these records included the fifth document identified the
September 2014 search S/ES part longer email chain. S/ES reviewed this may helpful for you know that messages from the Secretary are occasionally transmitted the
Department via email. However, these messages are transmitted from dummy email address that not
capable receiving replies, rather than from functioning email account. August 11, 2014, the Department produced the House Select Committee Benghazi documents related
the 2012 attack U.S. facilities Benghazi. The production included number emails revealing that Secretary
Clinton used personal email account conduct official business. OIG discovered four instances, between July and
September 2014, which staff from the Bureau Legislative Affairs reviewed the CREW request and the
Department May 2013 response, but the Department did not amend its response. and staff also told OIG that
the Department does not customarily revise responses closed FOIA requests. Nevertheless, during the course
this review, Department staff advised OIG their belief that the Department response CREW was incorrect and
that should have been revised include the former Secretary personal email account used conduct official
government business. OIG notes that the issue may have been resolved insofar the Department now engaged
the process publishing its FOIA website the 55,000 pages personal emails produced Secretary Clinton.
According February 26, 2013, memorandum IPS, S/ES stated that its FOIA Analyst spent hour searching
through the Department cable and telegram system and STARS and did not discover any responsive records. The
Deputy Director reviewed the search and results, but other official within S/ES conducted review.
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document and determined that was fact responsive the FOIA request, which the
Department disclosed the court July 2015.
RECOMMENDATIONS ensure that FOIA requests involving the Office the Secretary generate timely, accurate, and
complete searches and responses, OIG has issued the following recommendations the Bureau Administration, the Office the Secretary, and the Department Transparency Coordinator.
Their responses can found Appendix
Recommendation The Bureau Administration should identify necessary permanent
personnel part FOIA workforce planning efforts and quickly acquire those resources the
Department can comply with applicable law and improve the timeliness FOIA searches and
responses.
Management Response: its November 30, 2015, response, the Bureau Administration
concurred with this recommendation. noted that its fiscal year 2017 budget request includes
funding for two additional permanent positions for FOIA and continued funding
temporary positions (eligible family members and rehired annuitants).
OIG Reply: OIG considers the recommendation resolved. The recommendation can closed
when OIG receives and accepts documentation showing that these positions have been filled.
However, OIG strongly encourages the Bureau Administration continue monitor its
staffing levels determine whether additional permanent personnel are needed process
FOIA requests.
Recommendation The Office the Secretary, Executive Secretariat, should fully comply with
FOIA requirements and Department guidance (a) searching email records for all FOIA
requests which relevant records are likely maintained email accounts; and (b) reminding
S/ES employees that Federal records contained personal emails may subject FOIA when the Department control and should preserved the Department recordkeeping
systems.
Management Response: its November 30, 2015, response, the Executive Secretariat concurred
with this recommendation. noted that its current practice search email records for all
FOIA requests which responsive records are likely located.
OIG Reply: OIG considers the recommendation resolved. This recommendation can closed
when OIG receives copy S/ES FOIA policies and procedures that require search email
records for all FOIA requests which relevant records are likely maintained email accounts
and reminder S/ES employees that Federal records contained personal email may
subject FOIA and must preserved the Department recordkeeping systems.
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Recommendation The Office the Secretary, Executive Secretariat should address
weaknesses its FOIA processes by:
Developing written policies and procedures for performing FOIA searches addressed
the Office the Secretary.
Including FOIA duties part the performance standards for the Director Secretariat
Staff.
Ensuring that executive-level staff members rigorously oversee the FOIA process,
include regular monitoring activities and implementing corrective actions needed.
Coordinating FOIA training for all S/ES, Office the Secretary, Deputy Secretaries, Under
Secretary for Political Affairs, and Counselor the Department staff.
Management Response: its November 30, 2015, response, the Executive Secretariat concurred
with this recommendation. noted that S/ES currently drafting FOIA policies and procedures
and metrics for timeliness and completeness FOIA responses. S/ES also noted that the work
requirements for the current Director the Executive Secretariat include FOIA responsibilities
and that FOIA training for S/ES staff progress.
OIG Reply: OIG considers the recommendation resolved. This recommendation can closed
when OIG receives copies S/ES FOIA policies and procedures that include monitoring
activities and the development metrics that are reviewed executive-level staff; copy
the work requirements for the current Director that include FOIA responsibilities; and FOIA
training records for S/ES employees.
Recommendation The Department Transparency Coordinator should work with IPS
develop quality assurance plan identify and address Department-wide vulnerabilities the
FOIA process, including lack monitoring FOIA searches and responses, technological
challenges, and the sufficiency staffing and training.
Management Response: her response, the Transparency Coordinator concurred with this
recommendation. She endorsed accountability framework for the Department that includes
processes, roles, standards, and metrics help ensure that important legal, administrative,
evidential, and historical information requirements the Department are met.
OIG Reply: OIG considers the recommendation resolved. This recommendation can closed
when OIG receives copy the quality assurance plan.
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APPENDIX MANAGEMENT RESPONSES
United States Department State
Assistant Secretary State
for Administration
Washington, D.C. 20520
November 30, 2015
UNCLASSIFIED
TO:
Inspector General Steve Linick
FROM:
Bureau Administration Joyce Barr
SUBJECT:
Draft report- Review the Department States FOIA
Processes for Requests Involving the Office the Secretary
(ESP-16-0 dated November 13, 15)
The Bureau Administration thanks the OIG for the opportunity respond the
subject draft report and provides the following response the single
recommendation for this bureaus action.
Recommendation The Bureau Administration should identify necessary
permanent personnel part the FOIA workforce planning efforts and quickly
acquire those resources the Department can comply with applicable law and
improve the timeliness ofFOIA searches and responses.
The Bureau Administration concurs with this recommendation. the OIG
aware, increasing the number A/GIS/IPS FOIA staff one part the solution
for improving Department response time FOIA cases that are often broad and
extremely complex. date, Bureau has taken the following steps increase
our FOIA staffing/resources Fiscal Year 2016 and our request for Fiscal Year
2017.
The A/GIS approved budget request for 2016, which includes FOIA, was
$13,932,000. The Bureau recently requested additional $8.3M for 2016
cover the cost salaries, support, information technology (IT), and other
necessities for new positions dedicated FOIA operations (FOIA
50). Hiring currently under way for Eligible Family Members (EFMs) and subject matter expert Foreign Service annuitants. minimum Top Secret
UNCLASSIFIED
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-2-
clearance required for each these positions and hiring eligible family members
and annuitants helps expedite that clearance requirement. The 2016 funding
level for these activities subject the availability ofFY 2016 appropriations
which are currently pending with Congress. Bureaus request OMB includes two FTE and additional support
costs including resources improve FOIA systems. our understanding the
OMB pass-back for 2017 expected later this week. provided, the
resources requested for 2017 should allow the Bureau fund, least
partially, the recurring costs maintain the FOIA positions 2017 (i.e.
salaries, support, IT, etc.).
The Bureau appreciates the OIGs support our ongoing efforts improve the
Departments FOIA program.
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-2instruction from the Under Secretary for Management October 17,2014 and reiterated all SIES and bureau employees their check-in, periodic training,
and check-out briefings records management. instructed the abovereferenced guidance from the Under Secretary for Management, ensure Federal
records contained personal emails are preserved the Departments
recordkeeping systems, all employees are required copy forward any personal
message containing Federal record their official Department email accounts
for appropriate retention and archiving.
Recommendation The Executive Secretariat welcomes the OIGs suggestions
for improvement its FOIA processes and concurs with all four elements the
recommendation. The Executive Secretariat has already taken steps implement
these recommendations, specifically: Written policies and procedures (SOPs) are currently being drafted for all
involved the FOIA search process the bureau. These SOPs will
cleared with A/GIS/IPS and others the Department, appropriate. The work requirements the current Director the Executive Secretariat
Staff (SIES-S) include oversight and management the FOIA process for
SIES. The Director the Executive Secretariat Staff oversees all FOIA searches
conducted SIES-S staff and reviews and approves all responses
Bureau. SIES-S management developing metrics for timeliness
response and completeness searches. The Acting Executive Secretary and other senior Executive Secretariat
managers have recently completed FOIA training conducted A/GIS, and
training sessions are being arranged for staff the office the Secretary,
the Deputy Secretaries, the Under Secretary for Political Affairs, and the
Counselor.
The Secretariat notes (p. draft report) the OIG comment the fact that SIES
tasks currentS, D-MR, and employees search through their own email
accounts for responsive records FOIA cases. The Executive Secretariat would
like clarify for OIG that this standard practice Department-wide per guidance
from Bureau. The Executive Secretariat would further like clarify for OIG
that SIES-S does review the results all such searches.
Recommendation The Executive Secretariat looks forward continuing
ongoing collaboration with the Transparency Coordinator improve the FOIA
process. particular, the Secretariat strongly supports the recommendation
focus technological challenges conducting successful FOIA searches.
UNCLASSIFIED
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UNCLASSIFIED
TO:
Steve Linick, Inspector General
FROM:
Janice ~al3bs, Transparency Coordinator
SUBJECT:
Response Draft OIG Review ofthe Department States
FOIA Processes for Requests Involving the Office the
Secretary appreciate the work your Special Projects team identify needed
improvements processes and procedures related the Departments handling
requests under the Freedom oflnformation Act (FOIA). will take the opportunity the Quality Assurance Plan (QAP) address FOTA-related issues
(Recommendation within the context information management within the
Department. Transparency Coordinator, overall vision century enterprise-wide
information management system that advances the Departments goals increased
efficiency, transparency, and accountability. Under this vision, records
management less independent arm the information landscape and more
integrated process and functional system within whole-of-enterprise information
and knowledge management environment.
Information one the Departments most valuable assets requiring careful
management, thoughtful governance and strategic consideration its use and
control. The report recommends stronger focus information governance,
technological challenges and sufficient staffing and training. Specifically, the
Department needs accountability framework that covers the processes, roles,
standards, and metrics help ensure that important legal, administrative,
evidential and historical information requirements the Department are met.
Creating this framework the goal the QAP will prepare, concert with
A/GIS/IPS, S/ES and other pertinent offices.
The Department not alone dealing with the information management
challenges associated with todays fast changing, data-driven world. Many
agencies have the same issues: records management/FOIA traditionally have not
been high priority; new norm high volume requests and litigation cases;
staffing and funding shortfalls; outdated technology technology silos;
insufficient records-related internal controls; and insufficient training/education
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the importance effective management information/records. Secretary Kerry
recognizes these challenges and appointment was one step towards trying
address these matters holistically. plan will address all these issues, again with view towards finding
Department-wide solutions. will start with communications strategy that begins talk about information management new ways highlight the important role
that all Department employees play preserving records. This will begin with
message from the top followed periodic messages domestic and overseas
employees.
Thank you for the opportunity provide comments the report FOIA-related
processes. look forward helping implement your recommendations both
FOIA and records preservation general.
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ABBREVIATIONS
A/GIS
CREW
Department
Deputy Director
FAM
FOIA
GAO
IPS
FREEDOMS
OIG
S/ES
S/ES-IRM
STARS
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Bureau Administration
Office Global Information Services
Associated Press
Counselor the Department
Citizens for Responsibility and Ethics Washington
Deputy Secretary
Department State
S/ES Deputy Director Correspondence, Records, and Staffing
Foreign Affairs Manual
Freedom Information Act
Government Accountability Office
Office Information Programs and Services
Freedom Information Document Management System
Office the Legal Adviser
Office Inspector General
Under Secretary for Political Affairs
Office the Secretary
Office the Secretary, Executive Secretariat
S/ES Office Information Resources Management
Secretariat Tracking and Retrieval System
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OIG EVALUATIONS AND SPECIAL PROJECTS TEAM
Jennifer Costello, Team Leader
David Seide, Team Leader
Michael Bosserdet, Office Inspections
Kelly Minghella, Office Investigations
Brett Fegley, Office Inspections
Aaron Leonard, Office Audits
Robert Lovely, Office Evaluations and Special Projects
Jeffrey McDermott, Office Evaluations and Special Projects
Kristene McMinn, Office Inspections
Eric Myers, Office Investigations
Phillip Ropella, Office Audits
Timothy Williams, Office Inspections
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HELP FIGHT
FRAUD. WASTE. ABUSE.
1-800-409-9926
OIG.state.gov/HOTLINE you fear reprisal, contact the
OIG Whistleblower Ombudsman learn more about your rights:
OIGWPEAOmbuds@state.gov
oig.state.gov
Office Inspector General U.S. Department State P.O. Box 9778 Arlington, 22219
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